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Nydegger v The King

Nydegger v The King

Case [2024] NSWCCA 232 13 December 2024

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Nydegger v R [2024] NSWCCA 232
Hearing dates: 14 October 2024
Date of orders: 13 December 2024
Decision date: 13 December 2024
Before: Basten AJA at [1]
Dhanji J at [13]
Faulkner J at [14]
Decision:
(1) Grant leave to appeal.
(2) Appeal dismissed.

Catchwords:
CRIME – application for leave to appeal against sentence – appeal against sentence – casting upon a person an explosive substance, namely petrol, with intent to burn, maim, disfigure or disable the person – whether sentence manifestly excessive – ground not made out – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW), ss 33, 47
Criminal Appeal Act 1912 (NSW), s 5

Cases Cited:
Bourke v R [2010] NSWCCA 22; 199 A Crim R 38
DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
Maybury v R [2022] NSWCCA 233
McCullough v R [2009] NSWCCA 94; 194 A Crim R 439
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
R v Abboud [2005] NSWCCA 251
R v Nydegger [2023] NSWDC 619
R v Dinh [2010] NSWCCA 74; 199 A Crim R 573
The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14

Category: Principal judgment
Parties: Quintin Chester Nydegger (Applicant)
Rex (Respondent)
Representation:
Counsel:
S Howell with H Webb (Applicant)
J Styles (Respondent)
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

JUDGMENT

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.
1. R v Nydegger [2023] NSWDC 619.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nydegger v The King

Details

AGLC: Nydegger v The King [2024] NSWCCA 232
Case: [2024] NSWCCA 232
Decision Date: 13 December 2024

CaseChat Overview and Summary

In the matter of Nydegger v The King, the appellant, Nydegger, sought leave to appeal against his sentence, which was imposed after he was convicted of casting upon a person an explosive substance, specifically petrol, with intent to burn, maim, disfigure or disable the person. The appeal was heard in the High Court of Australia. The primary focus of the appeal was to determine whether the sentence imposed by the lower court was manifestly excessive. The appellant argued that the sentence should be deemed manifestly excessive given the circumstances and the absence of any physical harm to the victim.

The central legal issue before the court was whether the sentence was manifestly excessive. The court was required to examine the sentence in light of the relevant statutory provisions, case law, and sentencing principles. The court considered the gravity of the offence, the appellant's criminal history, and the impact of the offence on the victim, despite there being no physical harm. Additionally, the court evaluated whether the sentence imposed by the lower court was outside the range of reasonable sentences that could be imposed for such an offence.

The court concluded that the sentence was not manifestly excessive. It found that the lower court had appropriately considered the relevant sentencing principles and the specific circumstances of the case. The court held that the sentence was within the range of reasonable sentences that could be imposed for the offence committed. Consequently, the appeal was dismissed, and the appellant was not granted leave to appeal against his sentence. The lower court's sentence was upheld as appropriate and proportionate to the offence.

Orders