Nydegger v R

1. [1]

   BASTEN AJA: On 15 September 2023, Haesler SC DCJ sentenced the applicant, Quinton Chester Nydegger, to imprisonment for 6 years, 9 months with a non-parole period of 4 years, 4 months on a single charge that he “did cast upon a person … an explosive substance, namely petrol, with intent to burn, maim, disfigure or disable” the person, under s 47 of the Crimes Act 1900 (NSW). [1] The circumstances of the offending and the parties’ submissions have been set out by Faulkner J. I agree that there should be a grant of leave to appeal against sentence, but that the appeal be dismissed.

2. [2]

   The sole ground of appeal alleged that the sentence was outside the range reasonably available to the sentencing judge, without purporting to identify any particular error ascertainable from the judgment on sentence. The error was said, therefore, to inhere in the synthesis of considerations favouring severity and those favouring leniency.

3. [3]

   The primary factor favouring leniency was the applicant’s mental illness. That, however, was given careful and appropriate consideration by the sentencing judge and it cannot be said that the factor was given insufficient weight in the resulting sentence. The primary factor favouring severity was the objective seriousness of the offence. Before reduction by 25% for an early guilty plea, the starting point for calculating the sentence was 9 years’ imprisonment.

4. [4]

   Perhaps because the sentencing judge stated expressly and correctly that he was not imposing a sentence for a more serious offence than that charged, no reliance was placed on the principle stated in The Queen v De Simoni. [2] The principle for which the case is authority is that while, generally, all the circumstances of the offending may be taken into account in sentencing, the scope is qualified so as to exclude circumstances of aggravation which would have warranted a conviction for a more serious offence.

5. [5]

   In the present case, there is no doubt that the applicant caused the victim grievous bodily harm and that the circumstances amounting to grievous bodily harm were taken into account on sentence. That was no doubt because the agreed facts included both the act of casting petrol on the victim and the act of igniting the petrol and the horrific consequences for the victim. Those consequences included the victim’s medical treatment. Further, those matters were given close attention by the sentencing judge.

6. [6]

   As noted above, the charge was one of casting the petrol upon the victim, with intent to burn, maim, disfigure or disable. Serious as that offence was, the charge did not include igniting the petrol. The charge certificate approved in the Local Court included a second offence, under s 33(1)(b) of the Crimes Act, of causing grievous bodily harm with intent to do so. That offence encompassed both throwing the petrol on the victim and igniting it, and the consequential harm. It carried the same sentence as the offence under s 47 for which he was sentenced.

7. [7]

   The application of the De Simoni principle is usually found in cases which involve individual discrete offences, such as common assault, assault occasioning actual bodily harm and assault occasioning grievous bodily harm. In McCullough v R, [3] where the charge was malicious wounding, the sentencing judge was held not to be entitled to take account of the fact that the victim’s wrist was broken causing her to be placed in hospital for five days, Howie J stating:

8. [8]

   In this case, the whole of the offending could have been the subject of a charge under s 33 or, as occurred, under s 47. In terms, s 47 covers a wider range of conduct than does s 33, because s 47 is not limited by any particular outcome. While a pleading under s 33 is focused on the outcome (grievous bodily harm), although not exclusively so, the pleading under s 47 is apt to identify the specific conduct and not the consequence. If petrol is an explosive substance, causing petrol to explode may itself be a relevant act within the first limb of s 47. However, that was not charged. Accordingly, the question is whether the De Simoni principle applies to the charged conduct of casting the petrol, which did not include the separate act of igniting the petrol, so that the sentencer must disregard the fact of ignition and the consequences.

9. [9]

   There is a further question, namely how the De Simoni principle should be applied (if at all) in circumstances where a plea has been negotiated with the Director of Public Prosecutions, on the basis of a statement of agreed facts. A related issue arises in cases involving uncharged criminal conduct. [5] Criminal proceedings have special elements, but they are essentially adversarial proceedings. Where the offender has agreed to place before the court facts which might be seen as relevant only to a more serious offence than that charged, it would seem surprising that the offender could then claim legal error on the part of the sentencing judge in taking those facts into account. To deprecate that practice, [6] is not to say what should happen when it occurs.

10. [10]

    As the cases of Bourke and Maybury illustrate, these are not easy questions to answer. The issues were not raised on the appeal and should not be taken further.

11. [11]

    There is no doubt that the sentence in fact imposed by the sentencing judge was within an appropriate range, even disregarding the consequences for the victim. Some of the comparable cases were noted in R v Dinh. [7] As Johnson J observed:

12. [12]

    These cases support the conclusion that the sentence imposed in the present case was within an acceptable range. For these reasons, as well as those provided by Faulkner J, the appeal should be dismissed.

13. [13]

    DHANJI J: I agree with Faulkner J.

14. [14]

    FAULKNER J: Before the Court is an application under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) for leave to appeal against the sentence imposed by Haesler SC DCJ on the applicant following his conviction for a contravention of s 47 of the Crimes Act 1900 (NSW). Section 47 provides:

15. [15]

    The applicant pleaded guilty to the following charge:

16. [16]

    The sentencing judge imposed a sentence of 6 years and 9 months, with a non-parole period of 4 years and 4 months.

17. [17]

    Should leave be granted, the applicant seeks to rely upon a single ground of appeal, namely that the sentence imposed by the sentencing judge is unreasonable or plainly unjust.

18. [18]

    The application for leave was heard concurrently with the appeal itself. Leave to appeal ought to be granted. The appeal ought to be dismissed.

Facts

1. [19]

   Sentencing proceeded on a Statement of Agreed Facts and a Further Statement of Agreed Facts. They were succinct documents which were accurately summarised by the sentencing judge at the commencement of his Honour’s remarks on sentence:

2. [20]

   The applicant believed that the victim said something to the applicant as they arrived at the property. As described more fully in the Further Statement of Agreed Facts, the thing which the applicant believed was said was of a personally threatening nature. As the sentencing judge observed, the applicant accepted that the victim did not in fact say what the applicant believed him to have said. The applicant’s erroneous belief was based on a delusional memory.

3. [21]

   The consequences for the victim have been severe. The sentencing judge said:

Remarks on sentence

1. [22]

   The sentencing hearing took place on 15 September 2023 following which the sentencing judge made ex tempore remarks which the applicant describes as logical and comprehensive. After summarising the Statements of Agreed Facts, the sentencing judge observed that the applicant had pleaded guilty in the Local Court. The sentencing judge applied a 25% discount to the otherwise appropriate sentence to reflect the utilitarian value of the plea. The sentencing judge also considered the plea important because it demonstrated an acceptance of responsibility and it spared the victim of having to give evidence.

2. [23]

   The sentencing judge considered the objective seriousness of the offence and found that it was a particularly grave offence with very serious consequences. In making that finding, the sentencing judge said that it appeared that the applicant’s conduct was spontaneous. However, his Honour noted the agreed fact that the bottle of petrol was located on the verandah both for the chainsaw and for self-protection. The sentencing judge observed that having any form of weapon for self-protection creates a risk that it might be used.

3. [24]

   The sentencing judge considered that the applicant’s intention to cause harm to the victim was also relevant to objective seriousness. At [15] of the remarks on sentence, the sentencing judge said:

4. [25]

   More strongly, at [23] the sentencing judge said that the applicant’s delusional belief “could not in any way justify the actions”.

5. [26]

   The sentencing judge also took into account the fact that the applicant fled from the property immediately after igniting the petrol and did not offer any assistance to the victim. Those actions were subsequently moderated to some degree by the applicant calling 000.

6. [27]

   The sentencing judge emphasised that the applicant’s offence was constituted by throwing the petrol with the intention of burning, maiming, disfiguring, disabling or doing grievous bodily harm. Subsequently igniting the petrol was not part of the offence, nor the actual infliction of grievous bodily harm, which conduct might have been subject to other offences under the Crimes Act. The applicant was not charged with any other offence. The sentencing judge recognised that the sentence has to be assessed for the offence to which the applicant had pleaded guilty and not any other offence.

7. [28]

   The sentencing judge nonetheless considered that the harm actually caused to the victim was relevant to objective seriousness because objective seriousness is generally measured against the harm done. The harm caused to the victim significantly increased the objective seriousness. The sentencing judge took into account the consequences for the victim of the applicant’s conduct, both the consequences already suffered to date and the likely future consequences. The sentencing judge addressed at length the victim’s evidence about the impact of the offence. The sentencing judge said that the victim’s evidence drew to the Court’s attention not just the damage, but the sense of anguish created by the crime, a crime whose consequences will be of very long duration.

8. [29]

   As for the applicant’s subjective case, the sentencing judge took into account the applicant’s age (44 years old). As for his criminal record, the applicant had some drug and driving offences but no prior offences of violence. The applicant has never previously been in custody. The sentencing judge said that the offence “is totally out of character” and that the applicant is entitled to some leniency for his prior good character and his capacity to deal with his mental illness in the past.

9. [30]

   The sentencing judge took into account the applicant’s education, work and disability history.

10. [31]

    The applicant used cannabis when he was young and more recently has had a problem with methylamphetamine.

11. [32]

    The sentencing judge addressed the applicant’s mental health in some detail. In 2003 the applicant’s mother died at which point the applicant’s mental health deteriorated. He spent a year in a mental-health hospital.

12. [33]

    More recently, the applicant has been diagnosed with a persistent psychotic illness (chronic schizophrenia) and a substance use disorder. He heard hallucinated voices. At the time of the offence, the applicant had been assessed by his treating psychiatrist as being in remission. His medication was continuing but had been reduced. He has been subject to a community treatment order since 2013.

13. [34]

    His Honour had regard to evidence from a forensic psychiatrist which was relied upon by the applicant at the sentencing hearing. The sentencing judge said:

14. [35]

    The sentencing judge found that the psychiatric evidence demonstrated a clear causal connection between what occurred on 18 June 2022 and the underlying schizophrenia and as a result found the applicant’s moral culpability to be reduced.

15. [36]

    Further, the sentencing judge said:

16. [37]

    The sentencing judge referred to the evidence from the applicant’s father about the applicant’s family background, the support which is being provided and the promise of continuing support. In custody, the applicant has attempted to engage in full-time drug rehabilitation but this has not yet been made available. He is taking medication and is studying. He contracted Covid-19 in custody and at times has been locked in his cell. The sentencing judge referred to the difficulties of life in gaol, especially for those with an underlying mental illness.

17. [38]

    As one sentencing measure to be balanced along with all the other sentencing measures and all other relevant factors, the sentencing judge took into account the prescribed maximum penalty of 25 years.

18. [39]

    The sentencing judge had regard to the purposes of sentencing, which his Honour identified as protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The sentencing judge stated that mental illness, even if causally related, does not lead to an automatic reduction in sentence because of its impact on the offence or the offender’s moral culpability. The sentencing judge addressed the “complex and intricate” considerations which may arise where there is a tension between a mental illness warranting a reduction in moral culpability but also the need to protect society. The sentencing judge nonetheless stated that the Court must impose a just and proportionate sentence and cannot give effect to a level of preventative detention by exceeding the appropriate sentence for the offence.

19. [40]

    The sentencing judge found that in this case the applicant’s mental illness did reduce his moral culpability as distinct from his legal responsibility and, as a consequence, denunciation was less relevant. The sentencing judge further found that general deterrence could be moderated but that specific deterrence remained an important consideration. The sentencing judge expressed the hope that the applicant would understand from the sentence the need to keep to his medication, to engage where possible in rehabilitation and to take advice and guidance from his supportive family.

20. [41]

    The sentencing judge also accepted that the sentence would weigh more heavily on the applicant than would otherwise be the case because of the applicant’s mental illness.

21. [42]

    The sentencing judge made a finding of special circumstances because of the applicant’s mental illness, his need for drug rehabilitation treatment, his need to maintain prosocial supports in the community and the fact that he will need help adjusting to normal community life on release.

Sentence

1. [43]

   The sentencing judge synthesised all the matters referred to above. While his Honour noted that the applicant’s mental illness was relevant to the instinctive synthesis in multiple ways his Honour also noted that care was required that it not be double counted.

2. [44]

   The sentencing judge found that a custodial sentence was required and that supervision was required for as long as practicable subject to the minimum imprisonment required for the offending and the purposes of sentencing.

3. [45]

   Having carried out the above analysis, his Honour as set out above imposed a sentence of 6 years and 9 months, with a non-parole period of 4 years and 4 months. The sentence dates from 19 June 2020 with the consequence that the applicant will be eligible to be considered for parole on 18 October 2026.

Applicant’s submissions

1. [46]

   The applicant does not contend that the sentencing judge committed any specific error. It is not suggested that the sentencing judge acted upon a wrong principle, allowed extraneous or irrelevant matters to guide his Honour, mistook the facts or did not take into account some material consideration.

2. [47]

   The sole ground of appeal is that the sentence is unreasonable or plainly unjust.

3. [48]

   The applicant submits that the ground of appeal is a conclusion which does not admit of lengthy exposition. He nonetheless emphasises the following matters:

4. [49]

   The applicant further submits that the sentencing judge did not find that the applicant presents a danger to the community. This is said to be unsurprising because the applicant has suffered from schizophrenia since his early to mid-twenties but has no history of violence and has generally complied with courses of treatment.

5. [50]

   In what may be regarded as his ultimate submission, the applicant submits that the ways in which the sentencing judge took the applicant’s mental illness into account “are simply not reflected in the sentence imposed”. It is said that a 9 year sentence does not reflect “full weight” or “significant weight” being given to the chronic schizophrenia and the material contribution that illness made to the offending conduct.

6. [51]

   As a further matter, the applicant submits that the sentence does not reflect the applicant’s prior good character, the fact that the offence was “totally out of character” and the fact that the applicant has shown a capacity over many years to manage his illness.

7. [52]

   The applicant submits that the Court’s intervention is warranted.

Crown’s submissions

1. [53]

   The Crown submits that the applicant has not demonstrated that the sentence is manifestly excessive.

2. [54]

   The Crown submits that objective seriousness operates as a limitation on the appropriate sentence that can be imposed because the court cannot impose a sentence which exceeds that which is appropriate for or proportionate to the gravity of the crime (DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [68] (Beech-Jones CJ at CL, N Adams and Cavanagh JJ). The Crown further submits that mitigating factors must not be allowed to lead to a sentence which is disproportionate to the gravity of the offence (Veen v R (No 2) (1988) 164 CLR 465 at 477; [1988] HCA 14 (Mason CJ with whom Brennan, Dawson and Toohey JJ agreed)).

3. [55]

   Given the objective seriousness, the Crown submits that 6 years and 9 months was unremarkable.

4. [56]

   The Crown further submits that the sentencing judge gave full weight to the applicant’s mental illness. The Crown points out that the sentencing judge took the applicant’s mental illness into account in relation to the objective seriousness of the offence (given that it went to the spontaneity of the applicant’s conduct), moral culpability, the relevance of general deterrence in this case, specific deterrence, denunciation, the applicant’s onerous experience of custody and as a special circumstance because of the applicant’s need for supervision on release. The sentencing judge was, however, careful not to double count the mental illness, which was appropriate in this case. The Crown submits that the sentencing judge “was clearly mindful that the subjective case of the offender should not override the serious harm caused by his wilful act”.

5. [57]

   The Crown submits that ultimately the question is whether the sentence is outside the appropriate range for objective seriousness of the offence.

6. [58]

   Given the objective seriousness and the sentencing judge’s clear and considered approach to the applicant’s mental health, the Crown submits that the sentence is entirely appropriate and well open to the sentencing judge.

Determination

1. [59]

   As set out above, the sentencing proceeded upon agreed facts. There is no complaint about the facts found by the sentencing judge.

2. [60]

   As set out above, the applicant does not contend that the sentencing judge committed any specific error.

3. [61]

   When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles: Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] (R A Hulme J with whom Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreed):

4. [62]

   In seeking to discharge its burden of demonstrating manifest excess, the applicant’s submissions start with the head sentence of nine years (undiscounted for the guilty plea) and focus on the impulsive nature of the applicant’s conduct and the causal connection between his mental illness and the throwing of petrol on the victim.

5. [63]

   It may be accepted that the applicant’s schizophrenia was a substantial contributing factor to the applicant throwing petrol on the victim. That much was understood by the sentencing judge. The sentencing judge also evidently accepted the expert psychiatric evidence at page 9 of Dr Nielssen’s report dated 2 September 2023 that “[the applicant’s] offence itself was unusual, and indicates a disturbance in the capacity to consider the potential consequences of his actions arising from a chronic and disabling form of schizophrenia”. However, the applicant overstates the psychiatric evidence when he submits that his capacity to consider the potential consequences of his actions was grossly impaired. A disturbance in the capacity to consider does not equate to gross impairment.

6. [64]

   It is apparent that the sentencing judge recognised an important nuance in the relationship between the applicant’s mental illness and the commissioning of the offence. His Honour was right to do so, having regard to the evidence. The applicant’s mental illness gave rise to the delusional beliefs which founded the applicant’s perception of a personal threat from the victim, but the manner in which the applicant chose to respond to the perceived threat was another matter. As the sentencing judge observed, the applicant’s intent was clear when he threw the petrol. The applicant’s motivation was based on his delusional belief, but the delusional belief provided no basis for the applicant to take the bottle from the verandah, step towards the victim as the victim attempted to get out the car, shake up the bottle and throw petrol on the victim. Perceiving a threat from the victim, the applicant did not walk away, nor did he go inside the house and lock the door. The sentencing judge’s conclusion that the applicant’s delusional belief could not in any way justify his actions was open to his Honour on the evidence.

7. [65]

   In this regard, it was an agreed fact that the bottle of petrol was “left” on the verandah for two purposes, one of which was “self-protection in the event of intruders coming to the property”. The facts do not reveal when the bottle was left for that purpose but it must have been before the applicant left the property to collect the victim from the train station on the day of the offence. It may have been there for days or months or longer. There is nothing to suggest that the applicant had any particular intruder in mind. The location of the bottle of petrol was evidently unrelated to the victim and the applicant’s delusional beliefs about that particular individual.

8. [66]

   The sentencing judge’s finding that the offence was totally out of character for the applicant must be understood in this factual context. Actually throwing the petrol on a person was out of character, but it was not out of character for the applicant to think that it might be an appropriate response to throw petrol on an intruder coming to the property (not even inside the house). The applicant had taken steps to facilitate such a response by locating the bottle of petrol on the front verandah. As the sentencing judge rightly said, having any form of weapon for self-protection creates a risk it might be used.

9. [67]

   Sight must not be lost of the fact that the applicant pleaded guilty to an offence which has as an essential ingredient the applicant’s intention to burn, maim, disfigure or disable the victim. The applicant did not submit that his Honour was wrong to have regard to the victim’s injuries, noting his Honour was careful not to punish the applicant for offences with which he had not been charged.

10. [68]

    The applicant correctly points out that the applicant’s mental illness was relevant to a number of different aspects of the sentencing synthesis. As the Crown submits, the sentencing judge recognised each relevant aspect. However, the applicant’s submission should not be accepted that the undiscounted 9 year head sentence simply does not reflect the ways in which his Honour found the applicant’s mental illness should be taken into account, or that the head sentence makes it hard to see how “full weight” has been given to the applicant’s mental illness. In this regard, the sentencing judge took deliberate care to ensure that double counting not occur in relation to (or perhaps more accurately, excessive weight not be given to) the applicant’s mental illness. There is no contention that his Honour erred by taking that approach.

11. [69]

    Nor should the applicant’s submission be accepted that the sentence does not reflect the applicant’s prior good character and his demonstrated capacity over many years to manage his mental illness.

12. [70]

    The applicant has not demonstrated that the sentence imposed by the sentencing judge was outside the appropriate range of sentences open to the sentencing judge.

Orders

1. [71]

   I propose that the orders of the Court ought to be:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Appeal dismissed.