Citation: Nydegger v R [2024] NSWCCA 232
Court: Court of Criminal Appeal, New South Wales
Date: 13 December 2024
Judges: Basten AJA, Dhanji J, Faulkner J
Background
The applicant pleaded guilty in the District Court to a charge under s 47 of the Crimes Act 1900 (NSW) of casting an explosive substance, namely petrol, upon a person with intent to burn, maim, disfigure or disable that person. The agreed facts included both the act of casting the petrol and the subsequent act of igniting it, with horrific consequences for the victim. The charge did not separately encompass the act of ignition or the resulting grievous bodily harm.
On 15 September 2023, Haesler SC DCJ sentenced the applicant to 6 years and 9 months imprisonment, with a non-parole period of 4 years and 4 months. That sentence reflected a 25% discount for an early guilty plea, applied to a starting point of 9 years. A second charge under s 33(1)(b) (causing grievous bodily harm with intent), which had appeared on the original charge certificate, was not proceeded with.
The applicant sought leave to appeal, arguing the sentence was manifestly excessive. The sole ground was that the resulting sentence fell outside the range reasonably open to the sentencing judge, with no specific identifiable error in the reasoning but rather an alleged error in the overall synthesis of mitigating and aggravating factors.
Legal Issues
- Whether the sentence of 6 years and 9 months (with a non-parole period of 4 years and 4 months) was manifestly excessive for a s 47 offence.
- Whether the sentencing judge gave sufficient weight to the applicant's mental illness as a mitigating factor.
- Whether the sentencing judge was entitled, consistently with the principle in The Queen v De Simoni (1981) 147 CLR 383, to take into account the act of igniting the petrol and the consequential injuries to the victim, given that the charge under s 47 covered only the casting of the petrol.
- How the De Simoni principle applies where agreed facts forming the basis of a negotiated plea include conduct relevant to a more serious charge.
Decision
The Court granted leave to appeal but dismissed the appeal. All three judges agreed that the sentence was within the appropriate range and that no error had been established.
On the question of mental illness, the Court found the sentencing judge had given careful and appropriate consideration to the applicant's condition. The judge had deliberately avoided double-counting and had recognised mental illness as relevant across multiple aspects of the sentencing synthesis. The applicant's submission that the final sentence made it hard to see how "full weight" had been given to mental illness was rejected, as was the contention that the sentence failed to reflect the applicant's prior good character and demonstrated capacity to manage his condition over many years.
On the De Simoni principle, Basten AJA identified a significant and unresolved tension. The principle holds that a sentencing court may not take into account circumstances of aggravation that would have warranted a conviction for a more serious offence. In this case, the charge was limited to the casting of petrol; the ignition of that petrol and its consequences were arguably matters going beyond the charged conduct. However, those facts appeared in the agreed statement of facts tendered by consent. The Court noted that where an offender has agreed to place such facts before the court, it would be surprising for the offender then to claim error in the judge's reliance on them, though the Court did not resolve that question definitively.
Because the applicant did not raise this issue on appeal, and because the sentence was within the appropriate range even without reference to the consequences for the victim, the Court declined to take the De Simoni questions further. The sentence was confirmed as appropriate having regard to the objective seriousness of the offence and the full circumstances of the case.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence of 6 years and 9 months (non-parole period 4 years and 4 months) for casting petrol on a victim with intent to cause serious harm fell within the appropriate sentencing range under s 47 of the Crimes Act 1900 (NSW).
- A single ground of manifest excess, unsupported by any identifiable error in the sentencing judge's reasoning, requires the appellate court to find the sentence falls outside the range reasonably open: that threshold was not met here.
- The De Simoni principle, which prohibits a sentencing court from treating as aggravating any circumstances that would have warranted a conviction for a more serious offence, raises unresolved questions about its application where the broader conduct appears in agreed facts tendered by the offender as part of a negotiated plea. The Court noted this tension but expressly left it open.
- Where a sentencing judge explicitly guards against double-counting a mitigating factor such as mental illness, and acknowledges its relevance to multiple components of the sentencing synthesis, an appellate court is unlikely to find the weight assigned to that factor was insufficient.
- Under s 47, the width of the provision means the seriousness of any particular offence is determined by the facts of the case rather than the statutory definition alone, placing individual cases at different points across a wide spectrum of culpability.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 33, 47
- Criminal Appeal Act 1912 (NSW), s 5
Cases
- The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
- McCullough v R [2009] NSWCCA 94; 194 A Crim R 439
- Bourke v R [2010] NSWCCA 22; 199 A Crim R 38
- R v Dinh [2010] NSWCCA 74; 199 A Crim R 573
- Maybury v R [2022] NSWCCA 233
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14
- R v Abboud [2005] NSWCCA 251
- R v Nydegger [2023] NSWDC 619