New South Wales Supreme Court 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 Regina PARTIES : Michael Bernard SHARAH FILE NUMBER(S) : SC 2002/01 Crown: L Lamprati SC COUNSEL : Applicant: J Stratton SC Crown: S Kavanagh SOLICITORS : 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. That apart, it was accepted by both the Crown and Mr Sharah's counsel that, except in the area of rehabilitation, and that it was Mr Attard who had actually effected the shooting, there was no material difference between the circumstances of each offender. They were approximately of the same age and their criminal records were comparable. 7 Given the extent of Mr Sharah's knowledge at the time and participation in the robbery, I do not see the fact that it was his co-offender who actually effected the shot as making any material difference in their respective criminality. Neither counsel sought otherwise to argue against my conclusion of 25 years and for the reasons given in 2000 I regard it as appropriate. Those reasons should be regarded as incorporated in these. Considerations of parity also argue for the adoption now of the 25 years. 8 My reasons for, in 2000, refusing Mr Sharah's application were largely summarised in the following passage:- "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. 9 (Mr Taylor was a psychologist whose report was before me.) 10 In the proceedings which have led to these reasons, it was common ground that there had been substantial progress in Mr Sharah's rehabilitation since those words were written. I am persuaded, and the Crown did not argue to the contrary, that a re-determination of his sentence should be made. 11 Mr Sharah gave evidence to the effect of having learnt the error of his ways and of his determination not to re-offend or to partake of illicit drugs, a habit which had contributed to, if indeed it was not the cause of, his offending. There was nothing in the evidence adduced for the first time yesterday to cast doubt on what Mr Sharah said in this regard though I am not unconscious of the reservations I had as to his credibility previously. However, most of the evidence as to his rehabilitation came from prison records as to his conduct and actions since 2000. 12 That evidence is impressive and paints a substantially different picture of Mr Sharah since 2000 than that indicated by much of the evidence of his conduct previously. Numerous reports, particularly since mid 2001 speak glowingly of his performance and attitude over a wide range of activities. They show his participation in drug and alcohol counselling until it was no longer thought to be needed and of doing well also in psychological counselling. He has been a willing worker in many areas and of considerable assistance to others. A fair summary of much of the material is provided by remarks in a report by his case officer on 14 July 2004:- "Seems to be doing everything right to keep on track with his current case plan. Inmate has completed drug and alcohol courses and stress management. Seems to be progressing through system well." 13 There are however 2 matters which offend this pattern. On 19 July 2003 he was found with a bong in his cell and on 3 August of that year drugs were detected in his urine. He says, and I accept, that he has been subjected to many tests since and the records indicate that no drugs have been detected. The passage of time before and since, without any other offences, suggests these 2 were, so far as the last 5 years is concerned, an aberration. 14 These 2 incidents in 2003 are obviously cause for concern but in light of the extent of favourable reports, do not justify a refusal to re-determine Mr Sharah's sentence. Nor, in the circumstances, do I regard them as a reason for extending any non-parole period beyond what otherwise would be appropriate. After all, while later events can properly be taken into account, the primary task on which I am engaged is the determination of a sentence appropriate for the murder charge of which he was convicted. It would be entirely wrong to adopt the stance that, because his conduct is not perfect, or he might offend again, he must stay in prison. 15 Although it has taken longer to achieve, Mr Sharah's rehabilitation is not significantly, or perhaps at all, less than my understanding of Mr Attard's at the time I re-determined his sentence, fixing as the non-parole component 15 years. Since the commencement of Mr Sharah's sentence on 28 November 1989, appreciably more than this time has now expired and it seems to me appropriate to determine Mr Sharah's non-parole period so that it expires today. Of course, that does not mean that he is entitled to immediate release. That is a matter for the Parole authorities. He will however become eligible for parole tomorrow. 16 I should acknowledge that I am aware that commonly a prisoner's classification is reduced to "C" prior to the expiration of a non-parole period and steps are taken by the Corrective Services Department and Parole authorities to prepare a prisoner, likely to receive parole, for his release and that an order that the Applicant's non-parole period expire today may create difficulties in that regard. However, none of these matters can provide any justification for my extending Mr Sharah's non-parole period and he, and the authorities, will just have to do the best they can in the event of any such difficulties. Obviously he should not suffer more than absolutely necessary from them. 17 Accordingly, the orders I make are:- Michael Sharah, 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, 11 months and 1 day, both such periods commencing on 28 November 1989. I record as the date upon which it appears to me that you will become eligible for parole, 29 October 2005. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.