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Supreme Court 1 November 2023

R v Zarshoy

[2023] NSWSC 1177

HomicideFirearms & weapons
CRIME SENTENCE MANSLAUGHTER UNLAWFUL AND DANGEROUS ACT GUILTY VERDICT BY JURY STYLE SEMI

Citation: R v Zarshoy [2023] NSWSC 1177
Court: Supreme Court of New South Wales
Date: 1 November 2023
Judge: Davies J

Background

The offender was convicted by jury of the manslaughter of Robert Atkinson, who died on 29 June 2020 after being shot in the leg at his Wentworthville home. The two men had met through casual labour work at a removalist company. The deceased had arranged to act as an intermediary in the sale of a military-style semi-automatic rifle, an unregistered and prohibited firearm, and had organised the offender as a buyer.

On the evening of the shooting, the offender attended the deceased's home. Witnesses confirmed there was no arguing, yelling or fighting before the shot was fired. The bullet struck the deceased in the left leg, severing the popliteal artery and vein, and he died from blood loss at 8:46 pm. The offender fled the scene, firing the weapon a second time in the direction of the deceased's friend before escaping in a waiting vehicle. No payment for the firearm was found at the property.

The jury acquitted the offender of murder but found him guilty of manslaughter. A second count, charging him with discharging a firearm with intent to cause grievous bodily harm to the deceased's friend, resulted in a hung jury and was subsequently discontinued by the Director of Public Prosecutions.

  • What objective level of seriousness should be attributed to the offending?
  • Whether psychological evidence of a dysfunctional childhood, and the offender's letter expressing remorse, should reduce moral culpability or attract leniency in sentencing
  • Whether the offender's history of alcohol and drug use and associated mental health problems amounted to reduced moral culpability
  • What weight to give the offender's criminal history, including five prior serious violence convictions and numerous prison infractions
  • Whether special circumstances existed justifying a longer-than-statutory parole period
  • What sentence, including non-parole period, was appropriate given all relevant factors

Decision

Davies J assessed the offending as above the mid-range of objective seriousness. The shot was fired at close range with a prohibited weapon, in the victim's own home, without any preceding altercation. No money was found at the scene, which was consistent with the offender leaving without paying for the firearm.

The court declined to accept the offender's psychological report as a basis for finding reduced moral culpability. The offender had not given evidence, and the report contained accounts of childhood abuse that conflicted sharply with earlier statements the offender had made to authorities describing a good family relationship. Because the offender had also provided an implausible and untruthful account of the offence itself to the psychologist, the court found the uncorroborated abuse narrative unreliable. The offender's mental health difficulties were attributed to illicit drug use rather than to any independent condition warranting leniency.

The offender's letter to the court expressed sorrow to the victim's family, but Davies J found his continuing denial of responsibility undermined any genuine finding of remorse. The court also declined to extend leniency on account of drug addiction or mental health issues, noting that neither reduced the offender's culpability in the circumstances. The offender's five serious violence convictions, combined with an extensive record of prison infractions, meant that rehabilitation prospects remained guarded, although the absence of prison offences for over 12 months was acknowledged as a positive indicator.

A finding of special circumstances was made, justifying a non-parole period shorter than the statutory ratio. The court identified two reasons: the offender's drug addiction had never been treated, and he had spent much of his life in custody since age 16, creating a real risk of institutionalisation upon eventual release. The sentence commenced on 6 September 2020 to account for an earlier, concurrent term imposed for an offence committed in custody while on remand for this matter.

Orders Made

  • The offender was convicted of the manslaughter of Robert Atkinson.
  • Sentence imposed: 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.
  • First eligible for parole: 5 September 2028.
  • The court noted that, as a conviction for a serious violence offence, the State may apply for an order under the Crimes (High Risk Offenders) Act 2006 (NSW) before the sentence expires.

Key Takeaways

  • A sentencing court may decline to accept a psychologist's report where the offender has provided that psychologist with an account of events the court has found to be untruthful, and where the report's other factual premises are contradicted by the offender's own prior statements.
  • Continuing denial of responsibility can undermine a claimed finding of remorse, even where the offender has expressed condolences to the victim's family in writing.
  • Drug-related mental health difficulties will not automatically reduce an offender's moral culpability; the court found these conditions were self-induced through sustained illicit drug use rather than indicative of a mitigating personal history.
  • Special circumstances justifying an extended parole period may be found where an offender has an untreated addiction and has been institutionalised through near-continuous custody since adolescence, supporting the need for extended supervision on release.
  • The Supreme Court assessed manslaughter by unlawful and dangerous act involving a prohibited firearm, fired at close range in the victim's home without prior altercation, as above the mid-range of objective seriousness.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18, 33A
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 30E

Cases
- 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