R v Mihai

[2020] NSWDC 727

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Mihai [2020] NSWDC 727

Hearing dates:

2 November 2020

Date of orders:

20 November 2020

Decision date:

20 November 2020

Jurisdiction:

Criminal

Before:

Sutherland SC DCJ

Decision:

A head sentence of 3 years 10 months with a non-parole period of 2 years, 4 and a half months to commence on 10 August 2018.

Catchwords:

CRIME – Sentencing – Manslaughter – Violent Offences – Assault causing death – “one punch” legislation – "bitch slap"

Legislation Cited:

Crimes Act 1900

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

RvPalu [2002] NSWCCA 381; (2002) 134 A Crim R 174

RvQutami [2001] NSWCCA 353, (2001) 127 A Crim R 369

R v Risteski [1999] NSWSC 1248

R v Smith (2008) NSWSC 201

The Queen vOlbrich [1999] HCA 54;199 CLR 270

Category:

Sentence

Parties:

Regina (Crown)
Emil MIHAI (Offender)

Representation:

Counsel:
Mr C. Taylor (Crown)
Mr L. Fernandez (Offender)

Solicitors:
Ms. C. Kirkpatrick (ODPP)
Mr. S. Ingold (Nyman Gibson Miralis)

File Number(s):

2018/00215243

Judgment

BACKGROUND

1. Emil Mihai appears for sentence following his plea of guilty to a single charge of assault causing death. Such an offence contravenes section 25A(1) of the Crimes Act 1900 and carries a maximum penalty of 20 years imprisonment.

2. The offender was originally charged with the manslaughter of the deceased, Traian (Troy) Dihel, with an alternative count included in the original Indictment of assault causing the death of Troy Dihel.

3. On 3 August 2020 the offender was arraigned pursuant to that Indictment. He entered pleas of not guilty with respect to both the primary charge of manslaughter and to the alternative count of assault causing death. Prior to the empanelling of a jury, rulings were sought with respect to the admissibility of a number of aspects of evidence proposed to be led by the Crown.

4. Following some of the pre-trial matters being the subject of rulings the offender was re-arraigned at his request on 10 August 2020 on which occasion he maintained his plea of not guilty to the charge of manslaughter but entered a plea of guilty to the alternative count under s.25A(1). That plea was accepted by the Crown in full satisfaction of the Indictment. The offender is thereby entitled, as a consequence of the timing of that plea, to a discount of 5% in the ultimate determination of an appropriate sentence.

FACTUAL CIRCUMSTANCES OF OFFENDING

5. The factual background to these proceedings arises from the death of Troy Dihel on or about Thursday 9 February 2017. On that date three men, the offender, the deceased and a co-offender, RW were involved in the retrieval and theft of copper which they were in the process of acquiring from a number of buildings which were disused or in the process…