Citation: R v Attard & Sharah [2000] NSWSC 511
Court: Supreme Court of New South Wales
Date: 9 June 2000
Judge(s): Hulme J
Background
In November 1989, two men carried out an armed robbery at a painting contractor's shop. One entered carrying a loaded sawn-off shotgun, while the other directed the victims to the floor and took the money. As the pair attempted to leave, a struggle broke out, during which the shotgun discharged and fatally wounded one of the contractor's sons.
Both men were separately tried and convicted of armed robbery with wounding and murder. They each received life sentences for murder, imposed by Sharpe J in 1991. Approximately a decade after those sentences were imposed, both men applied under section 13A of the Sentencing Act 1989 to have their life sentences redetermined, meaning the court was asked to replace the indeterminate life sentence with a fixed term.
Legal Issues
- Whether each applicant's life sentence should be redetermined and replaced with a finite term of imprisonment
- What non-parole period, if any, was appropriate for the applicant whose sentence was redetermined
- Whether, for the applicant whose application was refused, the court should abridge the standard three-year waiting period before a further application could be made
Decision
As to the first applicant (Attard): Hulme J accepted that the shooting, while deliberate in the sense that the weapon was intentionally discharged, occurred during a struggle rather than as a targeted execution. The court reviewed the applicant's background, including a difficult upbringing, prior convictions (including earlier armed robbery offences committed while on parole), and a mixed but generally improving prison record. Taking all of this into account, the court was satisfied that a finite sentence was appropriate.
As to the second applicant (Sharah): The court declined to redetermine the life sentence. A significant concern was Sharah's continued and unresolved drug addiction. Hulme J found that the evidence before the court, including what Sharah had told a psychologist, undermined the reliability of his account of rehabilitation. The court was not satisfied that the addiction had been addressed, and held that while it persisted, Sharah remained a danger to the community. The statutory framework required that this weigh substantially against him.
On the question of when a fresh application could be made, Hulme J noted that although the statute contemplated a three-year minimum waiting period, the court had discretion to direct a shorter period. Given the significant delays the Supreme Court had experienced (the current applications had taken about two years from filing to hearing), the court directed that Sharah not re-apply for two years rather than the standard three.
The court also addressed the victim impact statements filed by surviving family members. Consistent with established authority, Hulme J acknowledged their contents but noted the limited role such statements play in murder sentencing, while observing that their presence served as a reminder of the gravity of the offending.
Orders Made
- Frank Attard's life sentence for murder was redetermined as a total term of 21 years, with a non-parole period of 15 years, both commencing 24 November 1989.
- Michael Bernard Sharah's application for redetermination of his life sentence was refused.
- Sharah was ordered not to re-apply for redetermination for a period of two years from 9 June 2000.
Key Takeaways
- Hulme J declined to accept the Crown's contention that the shooting was a deliberate, targeted act, finding on the evidence that it occurred during a struggle, and approached sentencing on that basis.
- Under the section 13A framework, persistent drug addiction that poses an ongoing danger to the community operates as a significant factor weighing against redetermination of a life sentence.
- A refusal to redetermine does not necessarily disadvantage a prisoner where no feasible non-parole period could result in a more favourable outcome than the one the prisoner might achieve on a future application after demonstrated rehabilitation.
- Victim impact statements in murder sentencing carry a limited role, consistent with the Court of Criminal Appeal's approach in cases such as Previtera and Bollen, though their presence can guard against undue focus on the applicant's circumstances at the expense of the offending's gravity.
- The court has discretion to direct a waiting period shorter than the statutory three years before a further redetermination application is heard, and Hulme J exercised that discretion by allowing re-application after two years, in part to account for the Supreme Court's own processing delays.
Legislation and Cases Referenced
Legislation:
- Sentencing Act 1989 (NSW), s 13A (re-determination of life sentences)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 6(3), 28 (victim impact statements)
Cases:
- R v Previtera (1997) 94 A Crim R 76
- R v Bollen (1998) 99 A Crim R 510