R v Zarshoy [2023] NSWSC 1177

Supreme Court New South Wales

Medium Neutral Citation: R v Zarshoy [2023] NSWSC 1177 Hearing dates: 22 September 2023 Date of orders: 1 November 2023 Decision date: 01 November 2023 Jurisdiction: Common Law Before: Davies J Decision: Mohammad Eimal Zarshoy is convicted of the manslaughter of Robert Atkinson. The offender is sentenced to a non-parole period of 8 years commencing 6 September 2020 and expiring 5 September 2028 with a balance of term of 4 years expiring 5 September 2032. Catchwords: CRIME – sentence – manslaughter – unlawful and dangerous act – guilty verdict by jury – where offence took place in victim's own home during sale of a military-style semi-automatic rifle – where offender shot victim in the leg with prohibited weapon at close range and fled the scene – offending above the mid-range of objective seriousness – where offender began alcohol and drug use at age 14 – mental health problems the result of illicit drug use – no finding of reduced moral culpability – offender not entitled to leniency given five serious violence convictions and numerous prison infractions – guarded prospects of rehabilitation although no prison offences for over 12 months considered a positive sign – general and personal deterrence significant considerations given importance of firearm and weapon laws and offender's criminal history – finding of special circumstances made – extra time under supervision needed given offender's untreated drug addiction and danger of institutionalisation SENTENCING – sentencing procedure – rejection of evidence – where offender did not give evidence -where psychological report details dysfunctional and abusive childhood – where offender previously reported good relationship with family and denied history of abuse – where offender provided untruthful and implausible account of the offence to psychologist – uncorroborated evidence of childhood abuse not accepted as a result of offender's untruthfulness and countervailing evidence – further implications for finding of remorse given continuing denial of responsibility Legislation Cited: Crimes Act 1900 (NSW) ss 18, 33A Crimes (High Risk Offenders) Act 2006 (NSW). Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 30E Cases Cited: Abbas v R [2014] NSWCCA 188 Baker v R [2022] NSWCCA 195 Devaney v R [2012] NSWCCA 285 Lloyd v R [2022] NSWCCA 18 R v Elsamad [2020] NSWSC 1372 R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174 R v Papandrea [1999] NSWSC 978 R v Pennisi [2001] NSWCCA 32 R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 Shedden v R [2013] NSWCCA 225 Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10 Texts Cited: Nil Category: Principal judgment Parties: Crown Mohammad Zarshoy (Offender) Representation: Counsel: G Wright SC (Crown) T Anderson SC (Offender)