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.