R v Mihai

District Court of NSW|2020-11-02

Solicitors: Ms. C. Kirkpatrick (ODPP) Mr. S. Ingold (Nyman Gibson Miralis) File Number(s): 2018/00215243

BACKGROUND

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.
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.
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.
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

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 of being demolished. The three men had apparently been involved in such illegal activity over a period of some months. They would enter the various premises and remove lengths of copper piping, copper wiring and other fittings and fixtures made of copper which were able to be exchanged at scrap metal merchants for something in the order of $6 a kilogram.
The offender and RW lived in adjacent home units while the deceased, together with his partner, was homeless and lived under a railway bridge at Yennora close to the warehouses. The Crown case was that all three men were involved in the use of illicit drugs and that each of them had taken a quantity of "ice" on the night in question. That fact, although intended to have been led at trial, is not a factor relied upon by the Crown in the plea which has been accepted. According to an account advanced by the offender, the deceased had also injected heroin on the night.
It would appear that the three men were variously in somewhat straitened circumstances - the offender was unemployed and the deceased was, as I have described earlier, homeless. The profits being made from the theft of the copper and its subsequent resale were, by any description, modest. The proceeds from the quantity of copper acquired on the evening of 9 February 2017 was variously estimated at about $500 to $600. Such modest profit was intended to be distributed between the three perpetrators.
The Crown case was that towards the end of the evening's thieving activities, RW was in a motor vehicle a short distance from the warehouse where he was waiting for the other two men. RW was proposed to be a Crown witness at trial. RW said that he heard an argument between the offender and the deceased, the culmination of which was a sound consistent with either a slap or a hit. RW got out of the vehicle and went to the scene where he saw that Dihel was lying on the ground. It suffices to observe that both the offender and RW, shortly after, left the premises leaving Dihel on the ground.
After taking a quantity of the copper away from the scene, both men returned later. According to one account, Dihel was still alive and making a loud gurgling or snoring sound. At some stage, after Dihel had been struck, RW had apparently walked in blood which was flowing from Dihel's head.
Following the return of both men to their Guildford residences an inculpatory conversation between the offender and RW was overheard. According to RW's ex-partner, she heard the offender say, "I bitch slapped him and he hit the ground. I'm a wrestler. I'm not meant to use my hands".
Over the following days, each of the offender and RW took a number of steps to distance themselves from the events at the warehouse. These included disposing of their clothing and shoes and the use of a high-pressure water cleaner on their respective motor vehicles.
On the morning of Monday 13 February 2017, the body of the deceased was found in the warehouse by employees of the company which had purchased the premises. Later that day police interviewed the partner of the deceased, Kathleen Hayles. She had been living beneath the railway bridge close to the warehouse with the deceased. She identified the offender and RW as having been involved in stealing copper fittings from the industrial subdivision, which included the warehouse where the deceased's body had been found.
Accordingly, the following day 14 February 2017, police spoke with the offender who participated in a lengthy recorded interview. It suffices to observe that although admissions with respect to the theft of copper by all three men were made by the offender, he denied any involvement in the death of Mr Dihel.
Following the interview with police the offender met with RW. Information that RW should tell the police in the event of him also being interviewed was discussed. Later that night RW was interviewed by police. He gave an account which was exculpatory and which falsely corroborated various aspects of the offender's earlier version of events.
Over the following period of some eighteen months police employed a variety of investigative strategies with a view to ascertaining the true cause of Dihel's death. This included the use of telephone intercepts and also surveillance or listening devices obtained pursuant to warrant.
In a further subsequent recorded interview in September of 2017 RW gave an account to police which included the narrative of events I have described earlier, namely that he heard an argument followed by a loud thud, and that when he went to the vicinity he saw the offender hugging and slapping Mr Dihel who was on the ground with blood coming from his head.
In April 2018, having become aware of RW's second interview the offender again participated in a lengthy voluntary interview.
In July 2018 RW was arrested and charged in connection with the death. He provided a further recorded interview during which he offered to give evidence against the offender. RW subsequently pleaded guilty and has been sentenced as an accessory after the fact to manslaughter and also to an ancillary offence relating to his attempts to hinder the investigation.
On 3 June 2020 RW was sentenced by Judge Craigie SC at Parramatta District Court to an aggregate sentence of 2 years and 10 months with a non-parole period of 1 year and 6 months. The indicative sentences were 2 years 6 months for the offence of being an accessory after the fact of manslaughter (including a matter on a Form 1); and 1 year 6 months for the offence of hindering an investigation. RW was given the benefit of a quantified reduction of 40% which was made up of 25% for his early plea of guilty and a further reduction of 15% reflecting 7.5% for each of past and future assistance.
I note in passing that RW was also serving a sentence, for which he had been sentenced after his arrest with respect to Dihel's death, relating to child sexual assaults which carried a non-parole period of 3 years running from 2 February 2017 until 1 February 2020. The Crown Sentence Summary also indicates that the aggregate sentence imposed by Judge Craigie is the subject of a sentence appeal which is due to be heard in the Court of Criminal Appeal on 24 November 2020. Neither party has suggested that judgment in the present matter should be delayed pending the outcome of that appeal.
Following the acceptance of the plea of guilty by the present offender a Statement of Agreed Facts has been tendered. To a considerable extent they are merely a recitation of relevant portions of the brief of evidence including the detail of the investigators' examination of the scene where Mr Dihel's body was ultimately located on 13 February 2017 in a state of extensive decomposition. The Agreed Facts however indicate what is described as the following basic facts upon which the offender stands to be sentenced: "At a vacant warehouse in the Sydney suburb of Yennora in 2017, the offender assaulted the deceased with an open-handed slap to the head of the deceased. The deceased fell to the concrete ground. The offender's action caused an injury later described by the pathologist, Doctor I'Ons, as a "blunt force head injury". The deceased Traian (Troy) Dihel died as result of the blunt force head injury."

OBJECTIVE CRIMINALITY

The Crown submits that the objective criminality should be assessed as being at the lower end of the mid-range of objective seriousness.
The defence submits that the offence falls "below the middle of the range of objective seriousness".
I am constrained to observe that the distinction between a matter falling towards the lower end of a perceived mid-range or below the middle of the range is a positional variation of little practical utility. The bare objective facts involving a single punch or blow or strike resulting in an unplanned and unpremeditated death, predominantly varies by reference to the surrounding circumstances.
I agree broadly with the terminology of both submissions and would assess the objective criminality of the present matter towards the lower end of a range described as the mid-range.
Although previously prosecuted pursuant to an allegation of manslaughter, the particular offending behaviour relating to so-called "one punch" deaths culminated in specific legislation which was introduced in 2014 following the tragic death of Thomas Kelly at the hand of Kieran Loveridge at Kings Cross in 2012.

SUBJECTIVE CIRCUMSTANCES OF THE OFFENDER

The subjective circumstances of the offender have been presented to the Court through a report from the clinical psychologist Sam Borenstein and oral testimony from the offender's partner, Ms Merrilly Payne. His criminal history record and his custody record have also been tendered.
The offender was born in Romania in March 1979. He was the eldest of four children. He described his upbringing as a normal life. His parents were apparently strict. He completed schooling to the equivalent of Year 11. From the age of 12 years he pursued the sport of wrestling, apparently to a high standard.
At the age of 21, representing Romania, he travelled to Australia to compete in a World Championship of wrestling. He described to Mr Borenstein that after arriving in Australia in 1999 he and others did not even attend the wrestling championships but instead "ran away". According to the psychologist's report the offender was granted what is described as a "skills visa" and he taught freestyle wrestling in Australia for two years thereafter. His English skills were somewhat lacking and it is described that he worked in the vineyards in Mudgee for some 11 years before returning to Sydney.
He then worked in the markets at Flemington for some five and a half years and he also had employment in demolition work.
His criminal history in Australia commenced within three years of his arrival in this country. In early 2002 he was charged with supplying a prohibited drug. In December 2002 he was sentenced with respect to that supply at Dubbo Local Court to a term of imprisonment of 2 years with a non-parole period of 9 months. It would appear that he was originally granted bail after being charged in January 2002 but in July 2002 was arrested and charged with common assault and assaulting an officer in the execution of duty. He was thereafter bail refused with respect to all matters.
When sentenced in December 2002 for the drug offending from January 2002 he was also sentenced to 9 months imprisonment by way of fixed terms for the common assault and the assaulting of the officer. He was also on that date sentenced with respect to other offending at Mudgee involving a further charge of common assault and a charge of destroying or damaging property. He received 9 months for the common assault and 6 months for the destruction or damage to property.
He was released to parole in April 2003. I should note in passing that before his arrest and refusal of bail in NSW had also been charged with an offence relating to unauthorised dealing with shop goods at Ipswich Magistrates Court on 28 June 2002 for which he was fined.
He was next charged with criminal conduct in mid-2013 when he was fined for possession of a prohibited drug and equipment for administering prohibited drugs.
In January 2014 he was again fined for possession of equipment for administering prohibited drugs. He was also charged with stalking or intimidating intending to cause a person to fear physical harm. He received a 2 year bond to be of good behaviour with respect to that offence at Dubbo District Court in July 2015.
Following his arrest on 12 January 2014 it would appear that he was bail refused for about 6 weeks before being granted bail. He was then on bail before receiving the good behaviour bond in the District Court in July 2015.
In November 2015 he was charged with custody of a knife in a public place and possession of a prohibited drug. He received a section 10 dismissal with respect to the offence with the knife and was fined for possession of the drug at Fairfield Local Court in January 2016.
He was also charged in January 2016 with another offence of possessing a prohibited drug and also possession of a counterfeit prescribed security. He received fines and Section 9 Bonds for those offences at Parramatta Local Court in February 2016.
A further offence of possession of a prohibited drug then came before Fairfield Local Court in March 2016. He received a more substantial fine and a further section 9 bond. As a consequence of those various breaches of the original section 9 bond which had been imposed at Dubbo District Court he was called up for the breach before Parramatta District Court in August 2016. His criminal history would suggest that no action was taken with respect to the breaches.
Further possess prohibited drug offences came before the Local Court in 2017, some of which resulted in further section 9 bonds. However, he was ultimately called up for breach of some of those section 9 bonds. He was sentenced to various terms of imprisonment amounting to an effective 3 months commencing on 21 August 2018 and concluding on 20 November 2018.
It suffices to observe that he was in fact arrested for the matters relating to the death of Troy Dihel on 12 July 2018 and has remained in custody since that time. I should note that the Crown sentence summary indicates that the time spent in custody since the date of his arrest has been solely referable to the death of Mr Dihel. His custody record, together with his criminal history, makes it clear that concurrent sentences, two of 3 months and two of 2 months were in fact served between August and November 2018. I will give consideration to that circumstance and to the principle of totality in determining the appropriate sentence for the present matter.
In addition to the picture which is painted, somewhat imperfectly, by reference to the above criminal history the offender has in recent years been in a personal relationship with Ms Merrilly Payne. She is a lady with no criminal history disclosed in the evidence before me who was otherwise a single mother. Her relationship with the offender commenced some 6 years ago in March 2014.
She said that she had first met the accused over 12 years ago in what she estimated somewhat arithmetically imperfectly as being 2004'ish. She has a child who is now 12 and who has taken the surname of the offender notwithstanding that he is not the biological father. They are said to be engaged and have been for 4 years. She said that they all want to have the same last name. She described the offender loving her son and her son loving the offender who he calls "Dad".
She gave evidence, which I accept, of the circumstances of a home invasion in September 2014 which is said to have occurred as a consequence of having requested one of the offenders to remove his caravan from their garage. Four men, all of whom were known to Ms Payne, kicked in the door of her home and assaulted her, the offender and her son. The offender was required to be treated at hospital and in due course she gave evidence in a trial against some of the offenders at Parramatta District Court in 2016. Both she and the offender required psychological counselling for over 12 months following the home invasion. She described the change in his behaviour following the home invasion and the proactive steps that he took to defend the family in the event of such a future incident.
She was aware that the offender was involved in stealing copper and knew of the deceased and the co-offender RW. She understood that the offender was acquiring copper in order to help support the finances required for his drug habit. RW lived next door. While she was aware that the offender was taking drugs, she did not know in what quantity. She said that he had started taking 'ice' to help him stay awake whilst working at Flemington Markets overnight. I should note in passing that the offender appeared to have stopped that employment prior to the incident with which I am concerned.
Mr Borenstein was of the opinion that leading up to and at the time of the subject offence Mr Mihai was "navigating the symptoms of chronic and severe post-traumatic stress disorder" consequent upon the home invasion some 18 months earlier. The psychologist's report sets out a mitigatory account by Mr Mihai in which he described the deceased on the night that he died "coming into his space, swearing and acting aggressively." According to that account the offender said he reacted and attempted to defend himself as a consequence of which he slapped the deceased.
Mr Borenstein expresses an opinion linking the diagnosis of PTSD with a more ready likelihood to react from a position of fear of harm and links that circumstance causally to the assault which took place.
I remind myself of the reserve which is appropriately held with respect to mitigatory accounts advance through a third party and which remain untested by cross-examination: see R v Qutami [2001] NSWCCA 353, (2001) 127 A Crim R 369; R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174.
It is also relevant to note that Mr Mihai denied any history of aggression or violence towards others according to the account of Mr Borenstein. That statement is patently at odds with some aspects of his criminal history.
I am not satisfied on the balance of probabilities of the mitigatory explanation relating to fear of harm or threatened harm towards the offender, as was described to Mr Borenstein: see The Queen v Olbrich [1999] HCA 54;199 CLR 270.
I accept that the offender most likely did suffer, to some degree, a level of PTSD following the home invasion which has been described in evidence before me. To the extent that an apparent mental illness may contribute to the commission of an offence in a material way it is a well-recognised principle that the offender's moral culpability may be reduced. The need for denunciation and punishment, in an appropriate case, may accordingly be reduced. I am however, not satisfied on the evidence in the present matter, that there was a causal connection in the manner described by Mr Borenstein in the commission of the offence.
Ms Payne described her intention and desire to take the offender back into her family. Notwithstanding a degree of reservation given the past history of their relationship, she expressed an intention to kick the offender out if he resumed his previous drug habit. Her hopes and optimism, although well-intentioned, will in due course need the strong commitment of the offender himself in order to be achieved.

CONSIDERATION

Determining an appropriate sentence in cases which result in the death of another human being requires careful consideration. As remarked by Hulme J in R v Smith (2008) NSWSC 201 at [15]: "The protection of human life and personal safety is a primary objective of the system of criminal justice. The Courts have stressed that what is involved in every case of manslaughter is the felonious taking of a human life and this must be the starting point of any consideration of the sentence to be imposed."
Whilst that quote arose in the context of a sentence for manslaughter following a death pursuant to a single punch, the remarks are apposite to the statutory and more recent offence under section 25A(1).
Parliament seeks to protect the sanctity of human life by the creation of a variety of crimes relating to actions which cause the death of another human. Various offences which result in death are the subject of serious crimes when they relate to driving. Such criminal sanctions can apply when the driving which caused the death was accompanied by a dangerous manner of driving, by excessive speed or by driving whilst affected by alcohol. Notwithstanding a maximum penalty of 10 years, terms of imprisonment regularly follow such criminal conduct.
Prior to the introduction of section 25A the unintentional death of a fellow human regularly resulted in charges of manslaughter. The substantive difference between manslaughter and the present offence turns on distinctions in degrees of recklessness and foreseeability and leads to a different maximum penalty - 25 years in the case of manslaughter and 20 years in the case of the offence to which the plea of guilty has been entered.
However, much assistance is to be gleaned from a perusal of some of the relevant cases involving a single blow leading to death notwithstanding that most such cases resulted in convictions for manslaughter. I have had regard to both the blunt instrument, so described, which is presented in the Judicial Commission statistics and also to the detail of a number of cases which appear to me to be broadly relevant in the present consideration.
It is trite to observe, as Hulme J did in the case to which I have already made reference, namely Smith, that the circumstances in which such an unintended death might occur varies "from a joke gone wrong to conduct falling just short of murder". The circumstances in which manslaughter (or an offence under S.25A) might occur "are so protean" that the maximum penalty in many cases may be of very limited guidance. In the event in Smith, a punch inflicted upon a stranger who was walking past at a taxi rank outside a function centre, leading to his death, resulted in a sentence of 3 years 9 months with a non-parole period of 2 years 6 months. That sentence followed a discount of 25% for the plea.
Broadly similar one punch or one strike offending is also to be found in R v Grenenger [1999] NSWSC 380. In passing sentence, following a jury verdict of not guilty to murder but guilty to manslaughter, Sully J imposed a sentence of 3 years with an 18 month minimum term. The factual circumstances included a blow with the metal leg of a bar stool which penetrated the skull of the deceased.
In R v Risteski [1999] NSWSC 1248 a single punch thrown in the course of an ongoing brawl at the Sydney Harbour Casino led to a term of imprisonment of 5 years 4 months with a minimum term of 3 years 4 months. Dunford J, referring to both general and personal deterrence said: "It must be demonstrated to the community generally and to the prisoner in particular that persons must not get into brawls, lose their temper or throw punches at other people lest tragic and disastrous, though unintentional, consequences result as happened here."
In R v Hyatt [2000] NSWSC 774 a dispute between the deceased and his supervisor at a building supply business resulted in the deceased being struck with a length of wood. Barr J found that the offender had "swung the wood out of frustration and in the heat of the moment without intending to do any particular injury and perhaps without even thinking that the wood would strike the deceased's head." Hyatt was sentenced to a term of imprisonment of 5 years with a non-parole period of 2 years.
In R v O'Hare [2003] NSWSC 652 Whealy J sentenced the offender with respect to the death of a shopkeeper in Oxford Street, Darlinghurst who had been punched once. In the fashion repeated in so many cases, the deceased had fallen back and cracked his head on the footpath and never regained consciousness. Whealy J found that there had been no provocation whatsoever on the part of the deceased. The 23 year-old offender was found to have a strong subjective case and had demonstrated genuine contrition and remorse. A sentence of 7 and a half years was discounted by 20% following the plea of guilty and resulted in a head sentence of 6 years. A non-parole period was specified of 3 years 6 months.
In Hopley v R [2008] NSWCCA 105 a fight had erupted between two separate groups following a disagreement on a dance floor in a hotel at Newtown. In the course of continuing interaction outside the hotel, the deceased died following a punch from the offender which caused the deceased to fall and hit his skull heavily on the roadway. The sentencing judge at first instance, Judge Berman SC, had referred to a number of manslaughter sentencing decisions where a single blow had caused death (see Hopley at [20]). I similarly have referred to each of the cases referred to by Berman SC DCJ. An appeal against the severity of a head sentence of 5 years with a 3 year non-parole period was dismissed by the Court of Criminal Appeal.
In R v Loveridge [2014] NSWCCA 120 the Court of Criminal Appeal substantially increased the sentences which had been imposed by Campbell J on the somewhat infamous Kieran Loveridge. Relevantly, the indicative sentence at first instance of 6 years with a non-parole period of 4 years was increased, following a successful Crown appeal against inadequacy, to 10 years and 6 months with a non-parole period of 7 years. I ignore for present purposes the multiplicity of additional offending which led to the aggregate sentence of 13 years and 8 months with a non-parole period of 10 years and 2 months. I should note in passing that Loveridge was only 18 years and 4 months at the time of his offending.
The Court in Loveridge reviewed a line of authority from the United Kingdom and also earlier decisions in NSW with respect to the strong requirement for general deterrence with respect to alcohol-fuelled offences of violence in places to which the public were entitled to have resort.
The matter of Loveridge and the community outcry following the death of Thomas Kelly led to the Parliamentary and statutory intervention which culminated in the insertion of s.25A in the Crimes Act.
Whilst Loveridge turned on its own specific facts and circumstances the Court of Criminal Appeal also focused attention on the role of other sentencing decisions in determining an appropriate sentence in a particular case (see [221] - [227] ). The Court of Criminal said at [226]:
"There is, in truth, no range of sentences for offences of manslaughter which may be said to have a single common component relating to the mechanism of death (such as the victim's head striking the ground after a blow to the head). To the same effect, there is no range of sentences for manslaughter offences said to have been committed by a knife or a rock or some other implement."
Before concluding the detail of cases to which I have made reference I should note R v Matthews [2015] NSWSC 49 which followed the decision in Loveridge. The deceased was punched a short distance from the Court House Hotel at Taylor Square by an acquaintance. The physical fight included punches being thrown by both parties and resulted in the deceased falling back and hitting his head on the iron railing of a pedestrian fence in Flinders Street. Following a 25% discount for the plea of guilty Davies J imposed a term of imprisonment of 7 and a half years with a non-parole period of 5 years.

DETERMINATION

In the present matter I have given careful consideration to an appropriate sentence and minimum term. Whilst the precise circumstances giving rise to the assault remain, to some degree, uncertain, I am satisfied beyond reasonable doubt that the motivation was one of anger rather than as opined by Mr Borenstein, one of self-protection. The blow was however a slap - not a punch, nor a head butt, nor a block of wood, nor a bar stool.
Whilst the actions of the offender subsequently involved calculated steps to avoid detection for the offence which he had committed, he does not stand to be punished with respect to possible other offending which is not the subject of any charge before me. Such conduct is, however, demonstrative of a lack of remorse and contrition at that time.
Subject to an allowance for the 5% discount to which I have made reference, the minimum term which should be served is a period of 2 and a half years. Such a period, namely 30 months, less a 5% discount, results in a non-parole period of 28 and a half months, or 2 years, 4 and a ½ months.
The appropriate head sentence, making some allowance for special circumstances, given that this is the longest period of custody served by the offender and taking into account his prospects for rehabilitation with the encouragement and assistance of his partner, is an additional term of 18 months resulting in a head sentence of 4 years before the 5% discount. A discount of approximately 5% results in a head sentence of 3 years 10 months.
Taking into account the sentence imposed and served for the unrelated drug matters of 3 months, and giving consideration to the principle of totality, the non-parole period and head sentence will commence from 10 August 2018. The non-parole period will accordingly expire on 23 December 2020 and the additional term will expire on 9 June 2023.

Amendments 25 November 2020 - Decision amended. 03 December 2020 - Catch words amended 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: 03 December 2020

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Judgment (8 paragraphs)

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