Nydegger v R

Court of Criminal Appeal (NSW)|2024-10-14|Before: Dhanji J, Faulkner J

Solicitors: Maria Walz Legal (Applicant) Public Prosecutions NSW (Respondent) File Number(s): 2022/00177530 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: [2023] NSWDC 619 Date of Decision: 15 September 2023 Before: Haesler SC DCJ File Number(s): 2022/00177530

Scope of the factors available on sentencing

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.
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.
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.
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: "38 The Judge was clearly entitled to take into account the nature of the assaults that gave rise to, or surrounded, the wounding. She was also entitled to take into account other injuries inflicted in the course of conduct resulting in the wounding that were less serious than the wounding. In my opinion her Honour was not, however, entitled to take into account other injuries inflicted upon the victim that were not wounds and were more serious than the wounds. A broken wrist is not encompassed in a charge of wounding and, particularly in the case of a 60 year old, was considerably more serious than the wounds. I do not believe that the Judge could take into account that the victim spent five days in hospital because that was not identified as being a result of the wounding or of injuries that were less serious than the wounding. 39 The Crown argued that the Judge was entitled to take into account all of the injuries inflicted because to do so was not in breach of the De Simoni principle. This, it was argued, was because the same penalty applied for both malicious wounding and malicious infliction of grievous bodily harm. But, as I have indicated, there are two separate offences depending upon the type of injury inflicted. It does not seem to me to be permissible to sentence an offender for injuries not charged where those injuries are more serious." [4]
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.
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.
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.

Sentencing range

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: "46 When an offence, such as that under s.47, is defined to include any of several categories of conduct, the seriousness of the conduct in a particular case depends not on the statute defining the offence, but on the facts of the case. In the case of a s.47 offence, a sentencing Judge has to consider where the facts of the particular case lie in a spectrum at one end of which lies the worst type of offence perpetrated by any act which constitutes a s.47 offence as defined: Ibbs v The Queen [1987] HCA 46; 163 CLR 447 at 452. 47 It is apparent from the terms of s.47 that a comparatively wide range of circumstances, some of them overlapping, are encompassed by the provision. … 50 The throwing or application of 'any destructive or explosive substance' may involve the throwing of a substance such as petrol or methylated spirits on a person. The application of petrol or methylated spirits to the surface of the skin will not necessarily cause injury. Of course, if the petrol or methylated spirits is ignited, injury will result, but that depends upon a further act by the assailant. Very serious offences extending beyond the scope of s.47 may result where petrol or methylated spirits is ignited on the victim: cf R v Difford [2001] QCA 359 (attempted murder); R v Williams [2002] QCA 142 (causing grievous bodily harm with intent to do so); R v Woodman [2009] QCA 197 (causing grievous bodily harm with intent to do so). 51 The relevant act must be accompanied by intent to 'burn maim disfigure disable, or do grievous bodily harm', whether bodily injury is effected or not. 52 In this case, the Respondent pleaded guilty to a charge of applying a corrosive fluid, namely acid, with intent to burn the victim. As s.47 makes clear, an offence is complete whether bodily injury is effected to the victim or not. In this case, bodily injury was effected to the victim, as a direct result of the application of the acid. 53 There are relatively few sentencing decisions in this State for s.47 offences. The attention of the sentencing Judge in this case was drawn to one decision of a two-judge bench of the Court of Criminal Appeal (R v SK and OZ [2001] NSWCCA 492) and three District Court decisions (R v Ohanian (Moore ADCJ, unreported, 16 December 2002); R v Hickey (Blanch CJ, unreported, 4 August 2006); R v Scamakas (Garling DCJ, unreported, 9 November 2006)). … 54 None of the New South Wales sentencing decisions involved application of a 'corrosive substance'. Each case involved the throwing of a 'destructive or explosive substance'. In each case, the offender had thrown or applied petrol to the victim, but was unsuccessful in attempts to set it alight. 55 R v SK and OZ involved juvenile offenders who ambushed their victim in a planned attack where he was struck on the head with a blunt weapon, stomped on by OZ when he fell to the ground, who then poured a substantial amount of petrol over him and then tried unsuccessfully several times to light it. Newman AJ (with whom Hidden J agreed) commented at [7] that 'the facts particularly in relation to the charges laid under s 47 (they also having been charged under s.33 Crimes Act 1900 with malicious wounding with intent to do grievous bodily harm) must come close to falling within the category of the worse [sic] type of case'. The offenders' appeals against sentences of imprisonment for seven years with a non-parole period of three years and six months following trial were dismissed. It is apparent from the judgment that the fact that the offenders were juveniles at the time of offending had a substantial effect on the sentences they received. 56 In R v Ohanian, Moore ADCJ expressed the view that the offence of 'throwing an explosive substance, namely petrol, with intent to burn' was completed at the point when the petrol was thrown with that intention. His Honour indicated that he did not find proved, as a matter of aggravation, 'that when Ohanian was waving the burning object about he was then serious when he said that he was going to burn' the victims. It appeared that neither victim suffered any injuries from the petrol. In the context of an horrific and prolonged attack by an offender with an extensive criminal history, Ohanian was sentenced to a head sentence of nine years' imprisonment. 57 In R v Skamacas, an offender with an extensive criminal history, threw petrol over five people (and tried unsuccessfully to light it) arising out of a domestic dispute. He was convicted at trial. Garling DCJ found that the offences fell 'well above the middle of the range of seriousness of this type of offence'. The effective sentence for the offences was a non-parole period of seven years and six months and a total term of 10 years."
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.
DHANJI J: I agree with Faulkner J.
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: 47 Using etc explosive substance or corrosive fluid etc Whosoever - causes any gunpowder or other explosive substance to explode, or sends, or delivers to, or causes to be taken, or received by, any person, any explosive substance, or other dangerous or noxious thing, or puts or lays at any place, or casts or throws at, or upon, or otherwise applies to, any person, any corrosive fluid or any destructive or explosive substance (including petrol), with intent in any such case to burn maim disfigure disable, or do grievous bodily harm to, any person, shall, whether bodily injury is effected or not, be liable to imprisonment for 25 years.
The applicant pleaded guilty to the following charge: "[O]n 18 June 2022, at Saddleback Mountain in the State of New South Wales, did cast upon a person, namely [the victim], an explosive substance, namely petrol, with the intent to burn, maim, disfigure or disable the said [victim]."
The sentencing judge imposed a sentence of 6 years and 9 months, with a non-parole period of 4 years and 4 months.
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.
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

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: "1. In June of last year Quinton Nydegger was living at his sister's property under the escarpment near Kiama. [the victim] and the offender had not spoken for some time, but the offender contacted [the victim]. He expressed regret about the breakdown of their friendship. He invited him to visit his property. He later drove to Kiama Railway Station and then drove him back to the property. 2. When they arrived, the offender got out of the vehicle while [the victim] retrieved his bag. The offender walked to the verandah and grabbed a 600 ml soft drink bottle. It had been kept outside the house as it contained petrol that was used for a chainsaw. He went to [the victim], who was still getting out of the vehicle. When he was about a metre away from him Nydegger shook the soft drink bottle, causing the petrol to spray over [the victim]. The petrol doused [the victim]'s head, face and chest. The offender then ignited the petrol. [the victim] was immediately engulfed in flames. The fire also spread to the car that he had been getting out of. [the victim] screamed at the offender, 'What have you done? What have you done? What have I done? Why? Why?' and ran about, trying to find some way of dousing the flames. 3. After igniting the petrol, the offender immediately turned and ran away. He left the property in another vehicle. Shortly after, he stopped and contacted triple-0, telling them a male had been burnt on the property and requesting an ambulance. He then drove on. 4. [the victim] was left at the property. He walked to the nearby road, where he managed to stop a passing motorcyclist, who contacted an ambulance. 5. The incident occurred at 4.00pm. Triple-0 was called first at 4.14pm and at 4.52pm paramedics were at the scene, finding [the victim] in severe distress. He was administered pain relief, intubated and taken to a Sydney Hospital for emergency burns treatment. 6. The following morning the offender returned to the property. That same day he spoke to police and made some admissions. He was arrested and has been kept in custody ever since. 7. [The victim] suffered burns to 11% of his total body surface, including his hands, face, neck, left thigh and chest wall. He underwent skin-graft surgery on 20, 24 and 29 June 2022. 8. The Agreed Facts indicate that it appears likely the offender genuinely intended to have [the victim] make a social visit. The offender told police that, as they arrived at the property, he believed that [the victim] has said something to him which exacerbated an underlying delusional belief. However, it is agreed on behalf of the offender, that [the victim] did not say these things. He also said that the fuel had been left there for a chainsaw used at the property and for self-protection in the event of intruders coming to the property. It is accepted the Court will be satisfied the offender picked up the bottle containing the petrol for the purpose of spraying it onto [the victim]. 9. The offender pleaded guilty in the Local Court. That plea has a number of important aspects to it, including acceptance of responsibility and the sparing of [the victim] from giving evidence in court and repeating, in front of a jury, what occurred. I will take that plea into account. As I must, I will reduce the otherwise appropriate sentence by 25% to reflect the utilitarian value of that plea."
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.
The consequences for the victim have been severe. The sentencing judge said: "17. As is obvious from the Agreed Facts, this offence was, taking into account its objective features, including the consequences for [the victim], a grave crime. In a report to the Court, the treating doctor who has been seeing [the victim], spoke of [the victim] being in hospital for weeks with at least five procedures being carried out. He is presently in the recovery phase, but he will need further surgery in the next six to 12 months. His left hand works well but his right hand is limited in its activity, reducing his ability to grasp things firmly. After surgery his right hand will need to be in a cast for at least a week. His face will need laser therapy and will require resection of scars and further skin grafts. 18. His reconstructive surgeon speaks of the injury as having a significant impact on his life over the past 12 months and it will, in the doctor's opinion, leave an indelible memory. 19. He will have an indelible memory of his injury for the rest of his life. He is likely to get back to a reasonable level of activity, but the doctor cannot say what level that would be. Overall, the impact of this injury, the doctor says, is significant and the injury itself was life-threatening. There will be a long process and at least two years before he is back to his normal activities. The doctor postulates, entirely understandably, that apart from the physical scars there will be psychosocial issues following the incident."

Remarks on sentence

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.
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.
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: "15 Here the offender's intent was clear. His motivation was based on his delusional belief but, delusional though it was, it provided no basis for doing what he did."
More strongly, at [23] the sentencing judge said that the applicant's delusional belief "could not in any way justify the actions".
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.
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.
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.
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.
The sentencing judge took into account the applicant's education, work and disability history.
The applicant used cannabis when he was young and more recently has had a problem with methylamphetamine.
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.
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.
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: "40 He accepted responsibility by his guilty plea. He told Dr Nielssen that he did not mean to do what he obviously did. While that is not evidence of remorse, Dr Nielssen notes, on page 9 of his report, that: 'Mr Nydegger's emotional responses were incongruent to the content of his speech, he had limited awareness of his condition and he had impairment in intellectual function in a pattern consistent with a chronic form of schizophrenia. … The 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.' 41 That conclusion helps explain his incapacity to fully understand, or have insight into, his offending or express full and detailed remorse."
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.
Further, the sentencing judge said: "44 In terms of the future, Dr Nielssen notes that Nydegger has a combination of disorders for which he requires long-term treatment under the supervision of a psychiatrist. His condition appears to be stable on his current treatment, although he may do better on one of the newer medications now available. 45 Dr Nielssen concludes: 'In addition to reliable adherence to antipsychotic medication Mr Nydegger's longer term prognosis is closely related to the future course of his substance use disorder, and participation in further substance related counselling and monitoring of abstinence from both methamphetamine and cannabis with drug screens.'"
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.
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.
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.
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.
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.
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

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.
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.
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

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.
The sole ground of appeal is that the sentence is unreasonable or plainly unjust.
The applicant submits that the ground of appeal is a conclusion which does not admit of lengthy exposition. He nonetheless emphasises the following matters: 1. the starting point for the head sentence was 9 years if the 25% discount allowed by the sentencing judge is disregarded; 2. the 9 years starting point factored in the objectively grave offence and the serious harm caused to the victim, but also the fact that the offence was "impulsive" and was committed by a man suffering from a persistent, chronic and disabling form of schizophrenia; 3. there was a material causal connection between the applicant's mental illness and the commission of the offence. The applicant was motivated to commit the offence because of his delusional beliefs about the victim, the voices that he heard and his belief that the victim said something of a threatening nature. The applicant further submitted that his capacity to consider the potential consequences of his actions was grossly impaired; 4. the sentencing judge found that the mental illness was relevant in multiple ways: 1. it reduced the applicant's moral culpability; 2. it reduced the need to denounce the offence; 3. it made the case an inappropriate vehicle for general deterrence; and 4. it will make the custodial sentence weigh more heavily on the applicant.
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.
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.
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.
The applicant submits that the Court's intervention is warranted.

Crown's submissions

The Crown submits that the applicant has not demonstrated that the sentence is manifestly excessive.
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)).
Given the objective seriousness, the Crown submits that 6 years and 9 months was unremarkable.
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".
The Crown submits that ultimately the question is whether the sentence is outside the appropriate range for objective seriousness of the offence.
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

As set out above, the sentencing proceeded upon agreed facts. There is no complaint about the facts found by the sentencing judge.
As set out above, the applicant does not contend that the sentencing judge committed any specific error.
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): 1. appellate intervention is not justified simply because the result arrived at by the sentencing judge is markedly different from sentences imposed in other cases; 2. intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error; 3. it is not to the point that this Court might have exercised the sentencing discretion differently; 4. there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and 5. it is for the applicant to establish that the sentence was unreasonable or plainly unjust.
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.
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.
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.
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.
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.
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.
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.
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.
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

I propose that the orders of the Court ought to be: 1. Grant leave to appeal. 2. Appeal dismissed.

Endnotes

R v Nydegger [2023] NSWDC 619.
(1981) 147 CLR 383 at 389 (Gibbs CJ); [1981] HCA 31.
[2009] NSWCCA 94; 194 A Crim R 439 (Howie J, McClellan CJ at CL and Simpson J agreeing).
See also, Bourke v R [2010] NSWCCA 22; 199 A Crim R 38; Maybury v R [2022] NSWCCA 233.
See LN v R [2020] NSWCCA 131 at [39]-[41], [48]-[54] (in my reasons); [100]-[102] (RA Hulme J); [120]-[158] (Hamill J).
R v Abboud [2005] NSWCCA 251 at [19] (Rothman J, Grove and Howie JJ agreeing).
[2010] NSWCCA 74; 199 A Crim R 573. 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: 13 December 2024

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