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R v Zarshoy

R v Zarshoy

Case [2023] NSWSC 1177 1 November 2023

Criminal Liability

Sentencing

Mens Rea & Intention

Unlawful and Dangerous Act

Remorse

Special Circumstances

Criminal Law

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Supreme Court

New South Wales

Summary available

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)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
SANS Law (Offender)

File Number(s): 2020/197121
Publication restriction: Nil

Judgment

On 29 June 2020 Robert Atkinson died as a result of being shot in the leg in his own home by the offender, Mohammad Eimal Zarshoy. The offender was…

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 Zarshoy

Details

AGLC: R v Zarshoy [2023] NSWSC 1177
Case: [2023] NSWSC 1177
Decision Date: 01 November 2023

CaseChat Overview and Summary

In the case of R v Zarshoy, the offender was convicted of manslaughter following a shooting incident that occurred during the sale of a military-style semi-automatic rifle in the victim’s own home. The offender shot the victim in the leg with a prohibited weapon at close range before fleeing the scene. The High Court of Australia was tasked with determining an appropriate sentence for the offender, considering the circumstances of the offence, the offender's background, and the principles of sentencing.

The primary legal issues the court needed to address included the objective seriousness of the offence, the offender's history of substance abuse and mental health issues, the absence of remorse, and the relevance of the offender's criminal history and potential for rehabilitation. The court had to weigh these factors to determine an appropriate sentence that balanced punishment, deterrence, and the likelihood of rehabilitation.

The court found that the offence was above the mid-range of objective seriousness due to the use of a prohibited weapon and the violent nature of the act. The offender's history of alcohol and drug use, starting at age 14, and the resulting mental health issues were considered but did not result in a finding of reduced moral culpability. The offender's extensive criminal history, including five serious violence convictions and numerous prison infractions, meant that leniency was not warranted. Although the offender had not committed any prison offences for over 12 months, a positive sign for rehabilitation, the court emphasised the importance of general and personal deterrence due to the offender's criminal history and the gravity of the offence. The court also noted the need for extra time under supervision due to the offender's untreated drug addiction and the risk of institutionalisation.

The court concluded that special circumstances existed and imposed a sentence that included a period of imprisonment followed by a term of supervision. This decision aimed to address the offender's dangerousness, ensure public safety, and provide opportunities for rehabilitation while considering the offender's background and the need for deterrence.

Orders