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District Court 20 November 2020

R v Mihai

[2020] NSWDC 727

Assault & violenceHomicide
CRIME SENTENCING MANSLAUGHTER VIOLENT OFFENCES ASSAULT CAUSING DEATH “ONE PUNCH” LEGISLATION

Citation: R v Mihai [2020] NSWDC 727
Court: District Court of New South Wales
Date: 20 November 2020
Judge: Sutherland SC DCJ

Background

The offender pleaded guilty to assault causing death under s 25A(1) of the Crimes Act 1900, carrying a maximum penalty of 20 years imprisonment. The charge arose from the death of Traian (Troy) Dihel on or about 9 February 2017 in a vacant warehouse at Yennora in western Sydney. The offender, the deceased, and a co-offender had been engaged together in the theft of copper fittings from disused industrial premises, selling the metal to scrap merchants for modest returns.

During an argument at the warehouse, the offender struck the deceased with an open-handed slap to the head. The deceased fell onto the concrete floor, sustaining a blunt force head injury. The body was not discovered until 13 February 2017, by which time it had decomposed significantly. A post-mortem found the cause of death to be that blunt force head injury.

The offender had originally faced a manslaughter charge, with assault causing death as an alternative. He initially pleaded not guilty to both, but after pre-trial evidentiary rulings he re-arraigned and entered a guilty plea to the alternative charge, which the Crown accepted in full satisfaction of the indictment. Because the plea was entered after the trial had commenced rather than at the earliest opportunity, the offender received only a 5% sentencing discount rather than the maximum 25%.

  • What is the appropriate sentence for assault causing death under s 25A(1) of the Crimes Act 1900, where the fatal blow was an open-handed slap rather than a punch?
  • What weight should be given to the offender's post-offence conduct, including steps taken to avoid detection, in assessing remorse and contrition?
  • How should the limited guilty plea discount of 5% (reflecting the late timing of the plea) affect the head sentence and non-parole period?
  • What role did special circumstances and rehabilitation prospects play in structuring the sentence?
  • How should the principle of totality apply given the offender was also serving a concurrent sentence for unrelated drug offending?

Decision

The District Court found that the motivation for the assault was anger rather than self-protection, as defence counsel had argued. His Honour accepted, however, that the blow was a slap, not a punch, head butt, or strike with an object. That distinction was treated as relevant to the objective seriousness of the offending, placing it at a lower level than cases involving more forceful or weapon-assisted strikes, though still a serious instance of unlawful assault causing death.

The court observed that the offender's post-offence conduct, which included disposing of clothing and shoes, pressure-cleaning vehicles, coaching his co-offender on what to tell police, and initially lying during police interviews, demonstrated a lack of remorse and contrition at the time. Although this conduct was not the subject of any separate charge, it was properly taken into account as evidence of the offender's state of mind following the death.

Special circumstances were found to exist, primarily because this was the longest period of custody the offender had served and because his rehabilitation prospects were considered favourable, supported by his partner. This justified extending the additional term beyond the standard one-third ratio.

Applying the 5% discount to both the head sentence and the non-parole period, and taking into account a three-month period already served for unrelated drug matters and the totality principle, the court backdated the sentence to commence on 10 August 2018.

Orders Made

  • Head sentence of 3 years and 10 months imprisonment (after 5% discount on a pre-discount head sentence of 4 years), commencing 10 August 2018 and expiring 9 June 2023.
  • Non-parole period of 2 years, 4 and a half months (after 5% discount), expiring 23 December 2020.

Key Takeaways

  • Under s 25A(1) of the Crimes Act 1900, an open-handed slap causing a fatal fall onto concrete can ground a conviction for assault causing death, even without any weapon or repeated blows.
  • The nature of the strike, specifically that it was a slap rather than a punch or weapon strike, was treated as a mitigating factor going to objective seriousness, though it did not remove the offending from the serious category.
  • Post-offence conduct designed to obstruct a homicide investigation, while not separately charged, is a legitimate consideration in assessing the offender's remorse and contrition at sentencing.
  • A guilty plea entered after the commencement of trial proceedings, following pre-trial evidentiary rulings, attracted only a 5% discount rather than the 25% available for the earliest possible plea.
  • Where an offender is concurrently serving time for unrelated matters, the principle of totality requires the sentencing court to consider the overall effect of cumulative sentences, and backdating may be appropriate to reflect time already served.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 25A(1) (assault causing death)

Cases Cited
- Hopley v R [2008] NSWCCA 105
- R v Grenenger [1999] NSWSC 380
- R v Hyatt [2000] NSWSC 774
- R v Loveridge [2014] NSWCCA 120
- R v Matthews [2015] NSWSC 49
- R v O'Hare [2003] NSWSC 652
- R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174
- R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
- R v Risteski [1999] NSWSC 1248
- R v Smith [2008] NSWSC 201
- The Queen v Olbrich [1999] HCA 54; 199 CLR 270