R v Zarshoy

Supreme Court of NSW|2023-09-22|Before: Davies J

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 chased from the house by Mr Atkinson's friend, Justin Ryan. Mr Ryan gave evidence that in the course of a struggle with the offender on the front lawn of the property, the offender discharged the same firearm in Mr Ryan's direction, although the bullet did not hit Mr Ryan.
As a result of these events, the offender was indicted on two counts as follows:
On 29 June 2020, at Wentworthville in the State of New South Wales, he did murder Robert Atkinson contrary to s 18(1)(a) of the Crimes Act 1900 (NSW);
On 29 June 2020, at Wentworthville in the State of New South Wales, he did discharge a firearm with the intention of causing grievous bodily harm to Justin Ryan contrary to s 33A(1)(a) of the Crimes Act 1900 (NSW).
The offender stood trial before a jury of 12 presided over by me. On 18 April 2023 the jury returned a verdict of not guilty to murder but guilty of manslaughter in relation to count 1. On 19 April 2023 I discharged the jury by reason of its inability to reach a verdict, whether unanimous or by majority, in relation to count 2. The Director of Public Prosecutions has determined that there will be no more proceedings on that count.

The offending

When making factual findings consistent with the jury's verdict, any facts found adverse to the offender must be found beyond reasonable doubt. Facts which are to be found in favour of the offender must be found on the balance of probabilities.
Robert Atkinson was born in April 1976. At the time of his death he was aged 44 years. He was one of three sons to his parents, and he had a sister, Leeanne Atkinson, who was almost 11 years older than the deceased.
Mr Atkinson had been in a relationship with a woman he had known since they were teenagers. They had one son together born in 2010. Mr Atkinson and his partner separated in 2012, but he continued to have a relationship with his son.
Mr Atkinson lived in a house in Jones Street, Wentworthville. He had two flatmates. One of these persons was Clint Butler who occupied the front bedroom at the property. The other flatmate lived between the Wentworthville house, mostly on the weekends, and a house on the Central Coast.
Mr Atkinson was a user of cannabis and methamphetamine. He worked for a removalist company called Allied Pickfords Australia in Pendle Hill.
The offender and the offender's brother had worked as casual labourers for Allied Pickfords. That was how Mr Atkinson and the offender came to meet.
Another employee of Allied Pickfords, Darren Sullivan, came into possession of a Six Corps KS30 military-style semi-automatic rifle. It was both an unregistered and a prohibited firearm.
In early June 2020, Mr Sullivan was being evicted from his home, and he told Mr Atkinson about the rifle. He said he did not know how to get rid of it, and Mr Atkinson said that he could help Mr Sullivan in that regard. A week or two later Mr Atkinson told Mr Sullivan that he had a buyer for the rifle. At some point, Mr Atkinson had asked Mr Sullivan how much he thought the rifle was worth, and Mr Sullivan said he didn't know but perhaps ten grand. They agreed to go halves in whatever Mr Atkinson managed to get on the sale. Mr Sullivan subsequently gave the rifle to Mr Atkinson.
Mr Atkinson arranged to sell the rifle to the offender.
Justin Ryan was a good friend of Mr Atkinson's. Mr Ryan spent a lot of time at Mr Atkinson's house. Mr Atkinson had told Mr Ryan about a week prior to the shooting that he was some sort of middle man in the sale of a gun, and that he was going to sell it to make some money. Mr Atkinson had told him he was selling it for a man called Darren, that he was going to sell the gun for $13,000, that Darren wanted $10,000, so Mr Atkinson was going to make $3,000. He said he was going to sell it to "one of the Habibis" which seems to be a reference to the offender and his brother. Mr Ryan had warned Mr Atkinson to be wary "of the Lebos", and Mr Atkinson had said, "They won't be walking out of the house with a gun unless I've got the cash in my hand".
Mr Ryan arrived at the house at about 6:15pm on Monday, 29 June 2020. He and Mr Atkinson smoked a couple of cones of cannabis in the back room of the house, and Mr Atkinson told Mr Ryan that "Habibi" (his name for the offender) was coming around to get the gun that night.
Mr Ryan then took Mr Atkinson's two dogs down into the back garage so that Mr Atkinson could finish mopping the floor of his house. Mr Ryan sat down in the garage using his iPad.
A short while later, Mr Ryan heard a male voice yell out, "Hey bro", and he saw a man on the back stairs. That man was the offender. Mr Atkinson let the offender into the house, and called out to Mr Ryan to give him some cannabis. He asked Mr Ryan to wait down in the garage and keep an eye up the driveway. He said he would be down shortly for a game of ping pong. About five to 15 minutes later, Mr Ryan heard a loud bang which sounded like a gunshot. He immediately heard Mr Atkinson's voice yelling out in pain. Prior to that time, Mr Ryan had not heard any yelling or arguing.
Mr Ryan got up from where he was sitting, grabbed a knife which was on a nearby table and ran through the house. When he got into the house he saw Mr Atkinson on the floor holding his leg in the hallway just outside the bathroom. He saw the man who had gone into the house from the backdoor a couple of metres in front of the front door, turning to the right.
Mr Atkinson chased after him, caught up with him and grabbed him. Mr Ryan claimed that the offender aimed the gun at him, that Mr Ryan grabbed the barrel and pushed it away and the gun went off. Mr Ryan then claimed that he and the offender wrestled over the knife that was in Mr Ryan's right hand. Mr Ryan said that they fell onto the front patio with Mr Ryan on top of the offender. Mr Ryan managed to hang onto the knife saying that he was pretty sure it cut the offender's hand when he pulled the knife back. Mr Ryan said that the offender got free of him and ran off. The offender got into a motor vehicle that was waiting out on the front street and the motor vehicle drove away. Mr Ryan then rang triple-0 and went back inside to help Mr Atkinson.
Police and ambulance arrived shortly afterwards. Mr Atkinson lost consciousness when the paramedics arrived. The paramedics commenced to treat Mr Atkinson but he died at 8:46pm that night. The cause of his death was a single gunshot wound to the left leg. The bullet transected a number of blood vessels including the popliteal artery and vein. They are the main blood vessels in the knee area taking blood to and from the heart. It was the blood loss that led to Mr Atkinson's death.
Mr Atkinson's flatmate, Clint Butler, was in his bedroom and remained in his bedroom, throughout the events just described on the night of 29 June 2020. Mr Butler had arrived home from work at 4 or 5 o'clock. He spoke briefly to Mr Atkinson and then went into his room where he remained watching television, playing games and reading. Mr Butler's bedroom was immediately adjacent to the hallway and bathroom where Mr Atkinson was shot.
Mr Butler's oral evidence was somewhat vague about what he heard and when he heard it. He was taken to his statement made some three weeks after the shooting and he agreed that he told the police that he heard footsteps up and down the hall, then whispering, and a few seconds after the whispering stopped he heard a gunshot. In that statement he said, "Now that I reflect on the incident I find it strange that I could not hear any arguing, yelling or fighting prior to the gunshot".
Mr Butler's evidence that there was no arguing, yelling or fighting prior to the gunshot is entirely consistent with the evidence of Mr Ryan whose position at the bottom of the back stairs of the house was such that he would have heard if there had been arguing, yelling or fighting. I accept on the basis of that evidence beyond reasonable doubt that there was no arguing, yelling or fighting prior to the offender shooting Mr Atkinson in the leg.
No money was found anywhere in the house that would constitute payment by the offender for the weapon.

Subjective matters

The offender did not give evidence at the sentence proceedings. He wrote a letter to the Court where he said: I am deeply sorry my condolences to the family and friends of Mr Robert Atkinson. I am sorry to his son that has to grow up without a father, his siblings that lost a brother and everyone else that lost a loved one. Mr Atkinson a nobody to me he was a friend a workmate and I feel so bad that because of my presence on the night of this incident and my actions he is no longer with us today. I am fully remorseful and I wish I can turn back time but unfortunately I can't and I have to live with this for the rest of my life.
The letter also expressed sorrow to his (the offender's) family, his partner and stepchildren, and to the community.
The offender relied chiefly on a very detailed report from the psychologist, Alison Cullen, including a detailed history of his background and life up to the present time. I note in that regard what the Court of Criminal Appeal has said in cases such as R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 and R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174, and I do not overlook what was said in Lloyd v R [2022] NSWCCA 18 at [43]-[47] about Qutami. I also have regard to what was said in Devaney v R [2012] NSWCCA 285 at [88] about not lessening the effect of the opinion of a professional psychiatrist or, here, a psychologist, simply because they have not been cross-examined. I note in that regard that Ms Cullen, having assessed the offender on what is called the Paulhus Deception Scale, found that individuals with his profile usually provided honest and valid responses, and that a number of matters told to Ms Cullen by the offender were verified and validated by contemporaneous medical and related documents. Nevertheless, other material, not apparently available to, or commented upon by, Ms Cullen, means that I must scrutinise carefully some aspects of the offender's background as they were described to Ms Cullen.
The offender told Ms Cullen that he was born in Afghanistan being the fourth of five children born to his parents' union. The family fled the war in Afghanistan to Pakistan, and were eventually sponsored to immigrate to Australia when he was three years old.
The offender told Ms Cullen that his father was a heavy drinker and suffered from PTSD. He described significant and protracted abuse by his father, directed not only to him but to his siblings and seemingly to his mother, particularly when his father had been unsuccessful at gambling. Ms Cullen reported that, overall, the offender recalled feeling helpless and scared throughout his childhood years. He said the entire family was also required often to accompany their father to work as a cleaner at night, and that he was then required to attend school after only two to three hours of sleep.
His parents finally separated when he was aged somewhere between 13 and 15. He has scarcely seen his father since that time. However, he described a good and very supportive relationship with his mother and his sister.
That account does not sit easily with what he has reported at earlier times. When he was admitted to Redbank House in August 2008 as a result of a drug- induced psychosis, the report from the Sydney West Area Health Service said: No known family history of mental illness. …His father is working as a cleaner and his mother is unemployed. He reports a good relationship with all his family and denies any history of abuse at home.
In a social worker's report to a magistrate for a hearing to be held on 23 December 2010, the social worker reported: Family is close and supportive. He lives at home with parents and siblings. …No known family history of mental illness.
When the offender was sentenced by Judge Kellerman in the District Court on 19 June 2012 for an offence of affray and an offence of intimidate with intent to cause fear of physical harm, there is no mention in Judge Kellerman's sentencing remarks of anything about a disadvantaged upbringing. The judge noted that the offender began using marijuana at age 14 which led to mental health issues and subsequently anger management issues. Notably, his sister gave evidence for him at those sentence proceedings.
In a presentence report dated 24 August 2014 the following appears: The offender currently resides in the family home with siblings and parents. Mr Zarshoy reported a stable upbringing with no significant concerns during his formative years. Liaison with the offender's sister corroborated these reports and further indicated the offender has ongoing support from immediate family members.
In the context of that report, and the sister's support at the sentence proceedings before Judge Kellerman, Ms Cullen's statement in her report that "Various attempts to contact Mr Zarshoy's sister, to corroborate their childhood experiences, were unsuccessful" might be thought to be significant.
Ms Cullen also reported that the offender had considerable difficulties at school. This was said partly to be due to fatigue (in relation to being at work with his father until the early hours of the morning), but also because he simply wasn't interested in learning. He claimed to have been bullied a lot at school, partly by reason of his background and poverty. That resulted in him getting into a lot of fights at school, and he was ultimately expelled from both Marsden High School during year 8 and Granville Boys High School in year 9. He ultimately obtained the equivalent of the year 10 certificate whilst in juvenile detention.
He told Ms Cullen that he first experimented with alcohol, marijuana and cigarettes during year 8 at the age of 14. That quickly developed into daily use of marijuana. He then commenced experimenting with ecstasy and cocaine which quickly moved to daily use. That ultimately led to his being admitted to Redbank Hospital following an episode of drug-induced psychosis in 2008.
At the age of 18 he was scheduled to Cumberland Hospital for drug-induced psychosis where he remained for some 31 days in 2010.
The offender denied to Ms Cullen that he had ever overdosed on illicit drugs. Ms Cullen commented that that appeared inconsistent with Western Sydney and Nepean Blue Mountains LHNS Clinical Coding Summary, dated 25 February 2014, which identified the offender's "injuries, poisonings, & toxic effects of drugs".
He first came into contact with the justice system in 2007 at the age of 15 years. This appears to be around the time shortly after he commenced using drugs. His first conviction was for robbery armed with an offensive weapon in October 2006. There were then offences in 2007 of common assault, assault occasioning actual bodily harm in company, affray and destroying or damaging property. Control orders were imposed for some of those offences.
In 2008 he committed offences of affray and using an offensive weapon in company with intent to commit an indictable offence. Control orders were imposed for those offences. In 2009 he was sentenced to imprisonment for 20 months for an affray. In 2011 he was convicted of another affray, and stalk and intimidate with intent to cause fear, for which he received a sentence of imprisonment of 2 years and 9 months. In 2014 there were minor drug and driving offences, but also a police pursuit for which he was sentenced to 6 months' imprisonment.
It appears that in October 2014 the offender was arrested for murder. He was held on remand for three years. The jury at the first trial was hung and he was subsequently acquitted at his second trial. He claimed to have developed a heroin addiction whilst he was held on remand. When he was released, following his acquittal, on 11 February 2018, he spent the longest time he has spent in the community, two and a half years, since he first went into custody as a juvenile. He was arrested for the present offence on 6 July 2020 and has remained in custody since that time.
In 2014, when aged 24, the offender told Ms Cullen that he was shot several times in the leg. Before this occurred, the police had informed him that there was to be a "hit on him". He said that this was because he was hanging around with the wrong people and "they thought I was a OMCG member". He said that he was associating with the Brothers for Life street gang, but denied being a member. Ms Cullen noted that the discharge summary from Westmead Hospital indicated that the offender had been in hospital for five days due to four gunshot wounds. It appears to be after that time that the offender developed, probably not without good reason, paranoia and suspicion of a lot of people.
Ms Cullen diagnosed the offender as suffering from Post Traumatic Stress Disorder, Early Onset Persistent Depressive Disorder with anxious distress, and moderate Opioid Use Disorder.
She assessed him on the Level of Service Inventory - Revised (LSI-R), and concluded that his score placed him in the moderate risk/needs category, that is, with approximately 48.1% chance of recidivism. Ms Cullen noted that the risk rating was heavily based on historical items and, in that way, his risk rating was unlikely to change significantly across time.
Ms Cullen said that the offender's chronic physical and emotional abuse perpetrated by his father during his formative developmental years undeniably predisposed him to complex PTSD, a negative self-concept and a passive interpersonal style. She said his mental health was compounded from 2014 partly as a result of being shot by an unknown assailant and partly as a result of being held on remand for three years on a charge where he was later acquitted. That time in custody resulted in him losing his first significant long term relationship.
Ms Cullen said: Mr Zarshoy's prior episodes of psychosis therefore render him more vulnerable to a re-emergence of said symptoms, especially in the context of regular, polysubstance misuse. Mr Zarshoy's wife described such symptoms leading up to the offence, however it cannot be certain that at the commission of the offence he was experiencing a psychotic episode.
The offender has been with his current partner, Aisha, since 2018. They were married just before he was arrested in July 2020. Aisha has two children from her previous relationship, and the offender told Ms Cullen that he had a close relationship with those children, particularly her son who suffers from Asperger's and ADHD. Letters from the children speaking positively about the offender were tendered.
In her report, Ms Cullen said: 2.2.3.13 Mr Zarshoy's interest in and motivation for treatment is typical of individuals being seen in treatment settings, and he appears more motivated for treatment than adults who are not being seen in a therapeutic setting. His responses suggest an acknowledgement of important problems and the perception of a need for help in dealing with these problems. He reports a positive attitude towards the possibility of personal change, the value of therapy, and the importance of personal responsibility.
In relation to the offending, the offender told Ms Cullen that, on entering Mr Atkinson's home, "He [Mr Atkinson] was off his head. He pulled the gun on me. We fought over the gun and he got shot." He told Ms Cullen that, "you don't go to rob someone without a weapon or a friend," and insisted that he did not attend the victim's home with any intention to rob him. He told Ms Cullen that when Mr Atkinson presented as drug-affected, he, the offender, interpreted the situation with vigilance and a startled response. Ms Cullen commented: Such heightened physiological responses in him would have likely contributed to Mr Zarshoy engaging in physical behaviour toward the victim to retrieve the gun from him. Accordingly, this assessment reveals a direct nexus between Mr Zarshoy's mental health impairments (i.e., PTSD), and the index offence. Moreover, Mr Zarshoy's (secondary) chronic, daily drug use at this time would have further compounded his rash and impaired decision making at this time. I will return to these matters a little later on in these Remarks.
The offender expressed similar sentiments of remorse to Ms Cullen as he did in his letter to the Court, which I have already set out. Ms Cullen said: 4.3 Mr Zarshoy confirmed that he used to be friends with the victim "who passed away" and he holds "regret for my involvement in the situation." Mr Zarshoy expressed that he wished he "never went there in the first place," and restated being "deeply remorseful and sorry for what happened." He acknowledged that the victim had a 12-year-old son, whom he feels sorrow for. He emphasised that he is deeply sorry for the victim's family, friends, and son. Mr Zarshoy recognised that "I've put myself here (gaol) because of my (antisocial) associations and drug use."

Manslaughter

The only basis put to the jury for a manslaughter verdict was that the offender had engaged in an unlawful and dangerous act, that is, that he intentionally shot Mr Atkinson, in circumstances where the jury were not satisfied of an intention to inflict grievous bodily harm. The parties accept that this must be the basis for manslaughter despite what the offender told Ms Cullen.
The account given to Ms Cullen is completely implausible. At best for a verdict of manslaughter, it raises self-defence. No such issue was raised before the jury. The offender's account is inconsistent with Mr Ryan's evidence, which I accept, that Mr Atkinson was calm and relaxed when he let the offender into the house, he asked Mr Ryan to keep a look out up the driveway, and said he would be down to play ping pong shortly. That evidence was not challenged. The offender's account is also inconsistent with Mr Butler's evidence of what he heard.
Although Mr Atkinson had had some cannabis before the offender arrived, and at the post-mortem it was found that there was methamphetamine in his blood, that does not cause me to have any doubt that Mr Atkinson was not as Mr Ryan described him. The toxicologist gave evidence that, although the level of methamphetamine in Mr Atkinson's blood was high, how it would have affected him might depend on whether he had a tolerance to it by reason of how frequently he used it. Further, the evidence was that the effects could be positive or negative. The toxicologist could not say when Mr Atkinson was likely to have consumed the methamphetamine, but it could have been on the morning of the day of his death.
Moreover, Mr Atkinson was keen to sell this weapon to the offender. It makes no sense that Mr Atkinson would "pull the gun" on the offender, or that they would fight over the weapon unless the offender had possession of the weapon and was refusing to give it to Mr Atkinson without paying any money for it. I am satisfied from Mr Butler's evidence, and from Mr Ryan's evidence for that matter, because he would have heard it where he was sitting, that the offender and Mr Atkinson did not fight or struggle before Mr Atkinson was shot. To the extent that the offender is trying to suggest that Mr Atkinson was accidentally shot in a struggle, I reject any such suggestion.
The failure of the offender to offer any assistance to Mr Atkinson after shooting him, or even to ring triple-0 also tells against the account that the offender gave to Ms Cullen.
There was no evidence of any friction, animosity or antagonism between the offender and Mr Atkinson, as the offender appears to accept in his submissions. Certainly, the text messages which passed between them leading up to the day the offender went to Mr Atkinson's house suggested nothing more than negotiations to enable the transaction to take place as each party appeared to desire.
Further, the ballistics evidence, which I accept, was clear that the offender was some little distance away from Mr Atkinson when he shot him, probably near the bookcase in the hallway, with the trajectory going downwards. Mr Atkinson was found near the bathroom door.
The account given by the offender to Ms Cullen was untruthful, and I reject it. That impacts on two other matters in the sentence exercise. First, its untruthfulness has implications for the acceptance of the offender's account to Ms Cullen about his childhood and his treatment by his father, particularly when that evidence conflicts with the other evidence I have identified where the offender provided inconsistent information to other people at earlier times. Secondly, it bears on the issue of remorse.
The offending took place in Mr Atkinson's own home where, despite the fact that he was selling an illegal weapon, he was entitled to feel safe. The offence was also committed with a weapon. The fact that manslaughter would ordinarily, but not always, be committed with a weapon of some sort, does not mean that the use of a weapon was not an aggravating feature of the offending.
The jury must have concluded that, by firing the weapon at Mr Atkinson's leg, the offender did not intend to cause him grievous bodily harm. Nevertheless, the weapon was a military type weapon capable of causing serious injury if fired at a person at close range as this weapon was. With the assistance derived from similar types of cases such as Shedden v R [2013] NSWCCA 225, R v Elsamad [2020] NSWSC 1372, R v Papandrea [1999] NSWSC 978, Abbas v R [2014] NSWCCA 188 and R v Pennisi [2001] NSWCCA 326, I consider that, as an instance of an unlawful and dangerous act, the offending falls above the mid-range of objective seriousness.
Although the likely explanation for the shooting of Mr Atkinson was that the offender intended not to pay for the weapon, I cannot find such a motive for the shooting beyond reasonable doubt. Although no money was ever found at the house by way of payment, and although Mr Atkinson had told Mr Ryan he would not be letting the offender take the weapon without payment, if the offender had possession of the weapon in the position he was when it was fired, he did not need to shoot Mr Atkinson to get out of the house with the gun. He was closer to the front door and had the weapon with which to threaten Mr Atkinson.
The offence was committed whilst the offender was subject to a conditional release order imposed on 24 July 2019 for driving while suspended. That is an aggravating factor, although I accept that the offending the subject of the conditional liberty was of a vastly different order.
I have detailed earlier the offender's unsatisfactory criminal record, including, as it does, five serious violence convictions for affray and an armed robbery. His record within the prison system involves, drugs, violence, intimidation, riot, offensive weapons, as well as other matters. Whilst on remand for the present offending the offender was convicted of being armed with intent to commit an indictable offence and sentenced to imprisonment for 4 months. His criminal record entitles him to no leniency.
I note, however, that he has had no more prison infractions after October 2022, a matter I will take into account when considering his prospects of rehabilitation.
The offender submitted that I would find as a mitigating factor that the offence was not part of planned or organised criminal activity. The Crown does not submit that it was part of such activity, but submits that that would not result in a mitigating factor being found. Whilst the killing of Mr Atkinson itself was not part of such activity, and I accept that the offender is not being sentenced for dealing in prohibited firearms, it is difficult to see how the arrangement to purchase a semi-automatic rifle, a prohibited weapon, could not have been part of organised criminal activity, particularly bearing in mind the offender's criminal history. I note in that regard that the firearm was ultimately found, not in the offender's possession, but in the possession of another person, suggesting either an on-sale or the involvement of someone else in the purchase from Mr Atkinson. Nevertheless, I do not find either that it was an aggravating factor, nor that the offender establishes on the balance of probabilities that it was not part of such activity to amount to a mitigating factor.

Moral culpability

The offender submitted that there should be a reduction made when assessing his moral culpability by reason of his mental health issues, and as a result of his childhood disadvantage from his dysfunctional family. His disadvantaged background included his early foray into illicit drugs from the age of 14.
Ms Cullen identified a link between the offender's PTSD and the offending as follows: 5.9 According to the DSM-5-TR "Individuals with PTSD may exhibit irritable or angry behaviour and may engage in aggressive verbal or physical behaviour with little or no provocation...PTSD is often characterized by a heightened vigilance for potential threats, including those that are related to the traumatic experience (i.e., following the shooting on him being fearful of being shot again) and those not related to the traumatic event...Individuals with PTSD may be very reactive to unexpected stimuli, displaying a heightened startle response, or jumpiness, to loud noises or unexpected movements. Startle responses are involuntary and reflexive (that is automatic and instantaneous)...Startle responses are distinguished from the cued physiological arousal responses, for which there needs to be at least some level of conscious appraisal that the stimulus producing physiological responses is related to the trauma. 5.10 Mr Zarshoy asserts that upon attending the victim's home, the victim presented as drug-affected (thus unpredictable), whereby he subsequently interpreted the situation with vigilance and a startled response. Such heightened physiological responses in him would have likely contributed to Mr Zarshoy engaging in physical behaviour toward the victim to retrieve the gun from him. Accordingly, this assessment reveals a direct nexus between Mr Zarshoy's mental health impairments (i.e., PTSD), and the index offence. Moreover, Mr Zarshoy's (secondary) chronic, daily drug use at this time would have further compounded his rash and impaired decision making at this time.
Of course, one might wonder, if the offender was suffering PTSD from being shot, or was fearful of being shot again, why he would be involved in the purchase of prohibited firearms.
I have already noted that the offender did not give evidence at the sentence hearing. Nothing in Qutami or the cases which have followed it suggests that the offender's evidence should not be accepted. Rather, the matter goes to one of the weight to be given to the second-hand and untested nature of the evidence: Devaney at [88]; Lloyd at [47]. I have not drawn any inference against the offender by reason of his not giving evidence, in making factual findings, following what was said by the High Court in Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10.
While both Devaney and Lloyd make clear that the professional opinions of psychiatrists and psychologists are not to be discounted because the offender does not give evidence of the history told to the expert, it is necessary to have regard to what was said in Baker v R [2022] NSWCCA 195 at [40]: There is a fundamental distinction in this respect between a psychiatrist's opinion based upon his observations and expertise, and opinions that depend on the offender's untested history.
I do not accept that part of the history contained in Ms Cullen's report concerning the alleged abuse of the offender by his father, for three reasons. First, it is inconsistent with the other evidence which I have detailed, some but not all of which Ms Cullen had, but has not commented on, nor has she sought an explanation from the offender. Secondly, the offender gave an untruthful account, as I have found, of what occurred in Mr Atkinson's house that night. Thirdly, the offender told Ms Cullen that he had "abstained from all drugs for the past three (3) years". Yet, he was convicted of possessing a prohibited drug on 14 October 2022 and he has four prison offences in 2022 for possessing drugs and drug implement. His untruthfulness about those two matters means that I cannot accept his uncorroborated evidence about his childhood abuse, which is now put forward for the first time. The offender must demonstrate on the balance of probabilities that his moral culpability is diminished. He has not done so.
That is not to say that the offender has not had mental health problems, nor that he did not come from an impoverished refugee background. However, the evidence clearly indicates that those mental health problems came from the offender's consumption of illicit drugs. His moral culpability is not thereby reduced. Nor can I accept Ms Cullen's conclusions (set out at [68] above), dependent as they are on the offender's untruthful account of what occurred at Mr Atkinson's house.

Remorse

I have set out at [25] above the terms of the letter the offender wrote to the Court expressing his remorse. The offender also told Ms Cullen that he was "deeply remorseful and sorry for what happened", and that he is deeply sorry for Mr Atkinson's 12 year old son and Mr Atkinson's family.
There was certainly no remorse shown by the offender on the night of the shooting even if his account of what happened is accepted. He made no attempt to assist Mr Atkinson even by anonymously calling triple-0.
When the offender was sentenced in June 2012 by Judge Kellerman for affray and intimidation, the judge recorded in his remarks: In a letter from the offender he records his remorse for committing the present offences and particularly in the context of his concern for the victim of the offences. He also apologises for his conduct and notes in his letter that he has now changed and wants one further chance to lead a law-abiding life. Yet, he told Ms Cullen that in 2014 he was "hanging around the wrong people" including the Brothers for Life gang, and he was involved in a police pursuit in that year, for which he was sentenced to imprisonment. Thereafter, he was convicted of an affray in 2016 and the present offence. I do not, therefore, place a great deal of weight on the offender's expressions of remorse.
Further, given that the offender is still not prepared to acknowledge the truth of what happened, and by blaming Mr Atkinson for what occurred, the offender has not satisfied s 21A(3)(i)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act"). In that regard, I note that at no stage did the offender offer to plead guilty to manslaughter.

Rehabilitation and reoffending

The offender has been abusing illicit drugs since he was aged 14. He is now aged 31. His involvement with drugs and criminal associates has given rise to his mental health issues. Ms Cullen said: 5.6 Notwithstanding Mr Zarshoy's two (2) prior hospital admissions, at ages 16 and 18 years, for drug-induced psychoses, it appears that Mr Zarshoy's mental health (and corresponding substance misuse) was compounded from 2014 onwards. This period coincides with the shooting on [sic] him by an unknown assailant; being placed on remand for three (3) years (his longest period of incarceration to date) for a murder charge of which he is later acquitted; and the subsequent loss of his first significant, long-term relationship. This trauma (as supported by his PCL-5, PAI and clinical interview), losses (of freedom and relationship), perceived injustice, and subsequent mental health decompensation both precipitated and perpetuated the onset of a (concurrent) heroin use disorder which continued until his arrest for the index offence. Mr Zarshoy's prior episodes of psychosis therefore render him more vulnerable to a reemergence of said symptoms, especially in the context of regular, polysubstance misuse. Mr Zarshoy's wife described such symptoms leading up to the offence, however it cannot be certain that at the commission of the offence he was experiencing a psychotic episode. 5.7 Mr Zarshoy's mental health history is both longstanding and complex. It has been further complicated by the persistent polysubstance misuse across time. Currently, he reports having abstained from all drugs for the past three (3) years, thereby increasing confidence regarding differential diagnosis, …
It does not appear that the offender has been treated for his drug addiction. There is some objective evidence of positive changes, in that the offender has had no prison offences for just over 12 months. That is a marked contrast to the years prior to that time. I have noted the factors suggested by Ms Cullen as protective factors supporting favourable rehabilitation prospects, especially the support from his wife whom he married shortly before his arrest, and the good relationship he has with his wife's children. I have also had regard to the letters from the Correctional Manager at Parklea and the Chaplain. Nevertheless, I consider that his rehabilitation prospects are guarded.
Judge Kellerman said in 2012 that he could not conclude that the offender was not likely to reoffend. His Honour was proved correct. Whilst there are some positive signs, his criminal history to date, and Ms Cullen's assessment using the LSI-R, lead me to the view that he still presents as a risk of reoffending.

Victim Impact Statement

A Victim Impact Statement was tendered at the sentence hearing. It was made by Mr Atkinson's sister, Leeanne Atkinson. It refers not only to her ongoing suffering as a result of her brother's death but also to that of her mother and father. Ms Atkinson's statement shows how deeply the whole family has been affected by Mr Atkinson's death. I again extend my sympathy to Ms Atkinson and her family, and to Mr Atkinson's son, for this senseless killing.
The Crown seeks, pursuant s 30E(3) of the Sentencing Act that the Statement be taken into account in connection with the determination of punishment for the offence on the basis that the harmful impact of Mr Atkinson's death on his family is an aspect of harm done to the community. I consider that it is appropriate to take the Statement into account in that way.

Deterrence and denunciation

Whilst it may be accepted that the offence for which the offender has been convicted is manslaughter, the offence arose out of the planned purchase of a dangerous and prohibited firearm which was used to kill the victim. In such circumstances, general deterrence is of some significance in the sentencing process. The importance of the type of firearm and weapon laws in place in Australia cannot be overstated. Offences that involve prohibited firearms, especially those resulting in death, must be severely punished as a disincentive to those who would use such firearms.
Given the offender's criminal history, especially for crimes involving violence, personal deterrence is also a significant consideration in the sentence to be imposed.

COVID-19 and custody

The offender has been remanded in custody for more than 3 years during the worst of the COVID-19 pandemic. During that time prisons have been frequently locked down and face to face visits considerably restricted. I have taken that matter into account in the instinctive synthesis.

Special circumstances

Although the Crown submitted that no finding of special circumstances should be made because any parole period would be sufficient for the supervision the offender will need to rehabilitate, I consider that longer than the statutory period should be allowed. I have noted that the offender's drug addiction seems not ever to have been treated. I have found that his prospects of rehabilitation are guarded, and I consider that he has spent so much of his time in custody since he was aged 16, that he will be in danger of being institutionalised by the time he is released to parole. That will mean extra time under supervision is needed.

Commencement of sentence

The offender was arrested on 6 July 2020 and he has remained in custody since that time. On 22 October 2021 he was convicted of being armed with intent to commit an indicatable offence and sentenced to 4 months' imprisonment. The whole of that sentence was served whilst he was on remand in the present matter. The offence was committed in custody whilst on remand for the present matter. For that reason, and having regard to principles of totality, there should be some concurrency with the sentence to be imposed. The present sentence should, therefore, commence on 6 September 2020.

Sentence

I have been considerably assisted by summaries of cases of manslaughter by reason of an unlawful and dangerous act as a result of the use of a firearm, provided by senior counsel for the Crown and senior counsel for the offender. I have read a number of those cases. Obviously, no two cases are identical, but those cases have helped to inform a useful range of sentences to which the present offending can be related.
Mohammad Eimal Zarshoy, I convict you of the manslaughter of Robert Atkinson. I sentence you 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. You will be first eligible for parole on 5 September 2028.
I am obliged to warn you that because you have been convicted of a serious violence offence, namely manslaughter caused by an unlawful and dangerous act, the State can make an application before your sentence expires to obtain an order against you under the Crimes (High Risk Offenders) Act 2006 (NSW).

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 November 2023

Crimes Act 1900(NSW)ss 18, 33A

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