R v Nydegger

[2023] NSWDC 619

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Nydegger [2023] NSWDC 619

Hearing dates:

15 September 2023

Date of orders:

15 September 2023

Decision date:

15 September 2023

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Sentence of imprisonment for 6 years and 9 months with a non-parole period of 4 years and 4 months

Catchwords:

CRIME — Violent offences — Using etc explosive substance or corrosive fluid

SENTENCING — Aggravating factors — Substantial harm, injury, loss or damage — Victim impact statement

SENTENCING — Guidelines for sentencing — Role of guidelines

SENTENCING — Mitigating factors — Plea of guilty

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — Specific deterrence — Moral culpability reduced due to mental illness — Schizophrenia — Denunciation less relevant — Objective seriousness — Purposes of sentencing

SENTENCING — Sentencing procedure — Instinctive synthesis

SENTENCING — Subjective considerations on sentence — Mental illness — Drug addiction — Special circumstances

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW)

Crimes Act 1900 (NSW)

Crimes (Administration of Sentencing) Act 1999 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Browning v R [2015] NSWCCA 147

Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Director of Public Prosecutions v DJK [2003] VSCA 109

DS v R; DM v R [2022] NSWCCA 156

Engert v The Queen (1995) 84 A Crim R 67

Kilic v The Queen (2016) 259 CLR 256

Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305

Paterson v R [2021] NSWCCA 273

R v Dinh [2010] NSWCCA 74

R v Fouani [2018] NSWCCA 230

R v M.F. [2014] NSWDC 136

R vTuala [2015] NSWCCA 8

R v Verdins [2007] VSCA 102; 16 VR 269

R vWindle [2012] NSWCCA 222

Tepaniav R [2018] NSWCCA 247

Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465

Category:

Sentence

Parties:

Quinton Chester Nydegger (the offender)
Public Prosecutions (NSW) (Crown)

Representation:

Counsel:
C O’Neill (for the offender)

Solicitors:
Maria Walz Legal (for the offender)
J Diggins solicitor for Public Prosecutions (NSW) (Crown)

File Number(s):

2022/177530

JUDGMENT – ex tempore revised

Agreed Facts

1. In June of last year Quinton Nydegger was living at his sister’s property under the escarpment near Kiama. Mr Gibson and the offender had not spoken for some time, but the offender contacted Mr Gibson. 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 Mr Gibson 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 Mr Gibson, 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 Mr Gibson. The petrol doused Mr Gibson’s head, face and chest. The offender then ignited the petrol. Mr Gibson was immediately engulfed in flames. The fire also spread to the car that he had been getting out of. Mr Gibson 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. Mr Gibson 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 Mr Gibson 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. Mr Gibson 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 Mr Gibson make a social visit. The offender told police that, as they arrived at the property, he believed that Mr Gibson has said something to him which exacerbated an underlying delusional belief. However, it is agreed on behalf of the offender, that Mr Gibson 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 Mr Gibson.

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 Mr Gibson 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.

Objective seriousness

10. A judge must make an assessment of the objective seriousness of a crime. It is one of the critical components of the sentencing process. The offence to which the offender pleaded guilty; pursuant to s 47 of the Crimes Act 1900 (NSW) provides that, relevantly:

“Whosoever—

… casts or throws at … any person … 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 [the] bodily injury is effected or not, [shall] be liable to imprisonment for 25 years.”

11. The relevant act here involves the throwing of the petrol on the person. The intent is proved whether bodily injury is effected or not. Here significant bodily injury was inflicted by the offender, but he was not charged with a s 33 Crimes Act 1900; a causing grievous bodily harm offence. That offence has the same maximum but a 7 year standard non-parole period.

12. A s 47 offence punishes the act and its intent. Section 33 punishes the act, both the act of throwing the petrol and the consequence of the further act of lighting it. While both offences have the same maximum penalty, s 47 has no standard non-parole period, arguably the standard non-parole period points to a potentially more severe consequence if content is given, as it must be, to that standard non-parole period.

13. Every offence for sentence has graduations of potential objective seriousness. Objective seriousness is generally, but not universally, measured against the harm done. The more serious the harm, the more severe the potential punishment. The seriousness of the conduct in any particular case depends, as Justice Johnson said in R v Dinh [2010] NSWCCA 74 at [50] on s 47, not on the statue defining the offence but on the facts of the case. His Honour then went on to speak about gradations and where on the spectrum an offence falls. More recently courts have indicated that the focus must be not on giving some label or nominating a point at which an offence lies along a hypothetical range, but on elucidating the gravity of the offending, and that can only be gathered from the particulars of the case.

14. Here my focus must be on the act and intent behind it, but I cannot ignore the consequences, which here significantly increase the objective seriousness of the offence. All factors which bear upon the seriousness of the offence must be taken into account. In some circumstances they can include factors personal to the offender, that are causally connected with, or materially contributed to, the commission of the offence. Some examples include motive, and also mental disorder, or mental impairment: Paterson v R [2021] NSWCCA 273 at [29]; Tepania v R [2018] NSWCCA 247 at [112]; Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305 at [324]-[325] (Brennan J); Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 at [55]-[56] and [171]-[172].

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.

16. A judge must also consider the moral culpability of the offender, that is their moral blameworthiness, for the offence but such an assessment does not form part of the determination of objective seriousness. A determination of moral culpability, and more often does, involved a wider set of subjective factors effecting the offender than the assessment of objective seriousness: DS v R; DM v R [2022] NSWCCA 156 at [63]-[96]. But where, as here, mental disorder or impairment is taken into account, when it comes to a number of different categories of sentencing synthesis, considerable care needs to be taken not to double count that factor.

17. As is obvious from the Agreed Facts, this offence was, taking into account its objective features, including the consequences for Mr Gibson, a grave crime. In a report to the Court, the treating doctor who has been seeing Mr Gibson, spoke of Mr Gibson 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.

20. It is impossible to say whether there were any elements of planning in this matter. It would appear that, given the Agreed Facts and given the delusional voices heard just prior to arriving at the premises, that the picking up of the petrol was spontaneous but I note the accepted fact that the petrol was there both, for the chainsaw and for self-protection; having any form of weapon for self-protection creates a risk it might be used.

21. The offender’s actions, spontaneous though they appear to be, doused Mr Gibson in petrol. That is the offence. The lighting of the petrol is proof of the intent, that is to cause Mr Gibson to be burnt. Mentally affected though he was, is was an inevitable consequence of his actions in giving effect to that intent that a person would suffer grievous bodily harm and be disfigured or disabled.

22. The offender then fled without offering any assistance, leaving Mr Gibson isolated. He moderated his actions to some degree by making the triple-0 call. It does not, however, as Ms O’Neill, counsel for the offender, suggests, mitigate the seriousness of the offence but it is a matter that I do take into account.

23. Mr Gibson has a life-threatening injury and will have significant long-term consequences physically and psychologically. The motivation for the act was based on the delusion that, even if true, could not in any way justify the actions. As I have said, this was a particularly grave offence with very serious consequences. It is not suggested that s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999 (NSW) applies; because it was correctly anticipated that the significance of the injury would be fully taken into account in formulating an appropriate sentence.

24. Although there are other offences that could have been charged, I sentence for this matter and not any other. I cannot take into account circumstances of aggravation which may have warranted a conviction for a more serious offence. I must focus, as I have said and attempted to do, on the facts of this matter. By any estimation this offence requires a significant penalty. Here, the maximum penalty of 25 years’ imprisonment requires close consideration. It is one sentencing measure to be balanced along with all the other sentencing measures and other relevant factors.

25. The offender is presently 44 years old. He has a criminal record with some drug and driving matters. While he is not of prior good character, this offence is totally out of character. There are no offences of violence on his record and, although he has had a schizophrenic illness for many, many years, his illness has not manifested in acts of violence. His prior good character and his capacity to, in the past, deal with his mental illness requires some leniency be extended.

Victim impact

26. As is clear from the Agreed Facts and the reconstructive surgeon’s report, the injuries were substantial.

27. Mr Gibson read his Victim Impact Statement to the Court. I was told by the Solicitor for the Director of Public Prosecutions that he was happy for his name to be used. He has taken a rational and realistic view of his future, despite his injuries. He told me how this crime has impacted on his life and the many ways it has done so. His “day-to-day living has been seriously impacted”. It has changed him. He can no longer make a fist, he has trouble shaking hands, and doing the dishes. Every day when he looks in the mirror, he is confronted by the injuries that were inflicted upon him.

28. There are other physical restrictions, including looking up into the sky and turning his head. A tattoo to which he had some attraction has been permanently disfigured. He has a number of significant scars, on his face, and on other parts of his body as a result of either the burns or the reconstructive surgery. He had previously suffered from Post-Traumatic Stress Disorder and “it has come back into [his] life”. He has feelings of “severe anxiety” and is “constantly in a state of fight or flight and hypervigilance”. He says, small things trigger him and his “concentration and patience have been affected”.

29. He has trouble being out in the sun doing things. He can no longer do things such as “fishing, bushwalking [or] playing golf.” He notes, he “was in a coma for five days.” He told me about the impact of the surgeries upon him and his anticipation of the surgery to come. Much of his time in recovery was spent during lockdown, during the COVID-19 pandemic. He notes the financial impact and the emotional impact on his family who have provided, and continue to provide, support. His life and capacity to work has been affected to date, and may be continued to be affected, particularly if function in his hands cannot be restored.

30. He says, “I was once a very jovial, social person, who was easy to get along with. I am determined to get back to being that person again.” Mr Gibson’s statement draws to the Court’s attention not just to the damage, but the sense of anguish created by this crime, a crime whose consequences will be of very long duration. It provides a practical means by which he can draw to the offender’s, the community’s, and the Court’s attention to the profound and devastating impacts of the crime upon him: Director of Public Prosecutions v DJK [2003] VSCA 109 at [17] and [18].

31. Given the nature of the crime, the Victim Impact Statement attests to the kind of harm that might be expected from a crime such in nature where the fluid was ignited and burnt. There is little difficulty with accepting its contents: R vTuala [2015] NSWCCA 8.

Subjective case

32. The offender did not give evidence but the material before me is not controversial. I have an affidavit from his father, who was not required for cross-examination. I have the benefit of a comprehensive psychiatric report from Dr Olav Nielssen, a respected forensic psychiatrist who, in the preparation of his report, had access to medical records and spoke to the offender’s family.

33. The offender’s father, who sadly could not be here today, provided an affidavit setting out; Nydegger’s family background, the support that is presently being given to the offender and the promise of continuing support, including accommodation and assistance with work when he is released. There is also evidence as to the father’s present medical condition.

34. An affidavit from the offender’s solicitor notes the attempts that Nydegger has made while in custody to engage in full-time drug rehabilitation, which sadly he does not at present qualify for. It confirms that; he has been presently taking depot medication and that he has studied for his Business Skills Certificate. It notes that he contracted COVID-19 in custody and provides evidence that he has been, at various times during his time on remand, locked in cells for either COVID-19 related reasons or industrial-action.

35. The Courts should not underestimate the impact of a lived experience of gaol. Prisoners are contained within the walls of a gaol. A lockdown means that they are kept in their cells, which are small, unpleasant places. They are forced to eat in the same place that they defecate, often sharing cells with people who, like themselves, have underlying psychological conditions. The community should not underestimate the impact of gaol, particularly on a person who already has a significant underlying mental illness.

36. The offender, now 44, comes from a good family. He left school in Year 10. He obtained an apprenticeship, studied at TAFE, and for much of his early teenage and adult life was able to work in the community. He has a number of skills. He used cannabis when young and it appears, more recently, has had problems with the drug, methylamphetamine.

37. The death of his mother in 2003 either precipitated or was coincident with a crisis in his life. His mental health deteriorated. He spent a year in a mental-health hospital. Since then, he has multiple admissions to mental-health hospitals. He has been on a disability-support pension since 2007. The diagnosis was one of schizophrenia. He has been subject to a Community-Treatment Order since 2013.

38. For the last 10 years he has been receiving regular depot medication. He continued on that medication up until this offence. He is receiving his medication while he is in custody. Shortly before the offence, he was assessed by his treating psychiatrist as being in remission. His depot dose was reduced in an attempt to enable him to requalify for a driver’s licence.

39. He was said to be compliant with his medication regime. He had family support. He was living on a property belonging to his sister where he was using his trade skills to assist in the renovation of the home there.

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.

42. He has a history of drug use and that is a continuing problem that must be addressed. Dr Nielssen sets out Nydegger’s personal history. Dr Nielssen concludes the offender has a chronic form of schizophrenia which he describes as showing typical symptoms of psychosis.

43. The history given to Dr Nielssen fits with the Agreed Facts. It indicates that the offence occurred as a response to delusional beliefs which he had formed, based on a delusional recovered memory. At the time of the offence, Nydegger was experiencing symptoms of his schizophrenia, including hallucinated voices speaking to him. The report indicates a clear causal connection between what occurred and the underlying illness.

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”.

46. A copy of Dr Nielssen’s report, Exhibit 1, will be sent with a warrant to Community Corrections.

Mental illness

47. Sentencing mentally ill offenders for serious crime raises difficult questions of judgment and assessment of problems. They are, to an extent, intractable. The offender’s psychiatric illness is a relevant factor. There is, I accept, a causal link between the offending and his mental illness and it would appear to be a substantial contributing fact to that behaviour.

48. Such illnesses often lead to significant leniency in sentencing, but this is not necessarily so. Guidance as to the impact of psychiatric illness, not amounting to insanity, on the sentencing process was helpfully discussed by Chief Judge McClellan in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]; and the Victorian Court of Appeal in R v Verdins [2007] VSCA 102; 16 VR 269. In De La Rosa, at [177], the Chief Judge said:

“Where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence.”

49. Given more recent decisions of the Court of Criminal Appeal and more precise definitions of what is meant by “objective seriousness” and “moral culpability”, the terminology used at point one at par [177] may need revisiting but the intent of Justice McClellan’s guidance is clear.

50. Sentencing courts must always consider the purposes of sentencing and guiding common-law principles. Here it is relevant to refer to what was said by the High Court of Australia in Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 at [476], “protection to society, deterrence of the offender and of others who might be tempted to offend, retribution and reform” are important.

51. The decisions in Veen (No 2) and Engert v The Queen (1995) 84 A Crim R 67, make it clear that mental illness, even if causally related, does not lead to an automatic (or logical) consequence for reduction in sentence because of its impact on the offence or an offender’s moral culpability. “The interplay of the [various] considerations … may be complex and … intricate”, as Chief Justice Gleeson noted in Engert at [68], referring to Veen (No 2).

52. In R vWindle [2012] NSWCCA 222 at [41]-[50], Justice Basten discussed the difficulties involved in the assessment of a just and proportionate sentence, which involves punishment for life-threatening violence inflicted in a terrifying attack; as against the need to protect the public. His Honour noted the potential for “unprincipled sentencing’” under the guise of community protection, particularly where the mental illness operates to reduce an offender’s culpability, reinforcing his Honour’s judgment, reinforcing the principle of proportionality.

53. A court must impose a just and proportionate sentence, but a court cannot give effect to a level of preventative detention by exceeding the appropriate sentence for the offence, as the High Court said in R v Veen (No 2) at [476]. Applying those principles, I conclude that Nydegger’s mental illness does reduce his moral culpability as distinct from his legal responsibility. As a consequence, denunciation is less relevant.

54. I accept that the existence of his underlying conditions means that the sentence will weigh more heavily on Nydegger than would a person in normal mental health. General deterrence principles can also be moderated, given the nature and severity of the symptoms he exhibited and the effect of the condition on his mental capacity at the time of the offending and now. Specific deterrence still remains an important sentencing consideration. Nydegger must, by hopefully understanding the punishment that has been inflicted on him, understand the need to; keep to his medication and drug regime, to engage where possible in rehabilitation, and to take the advice and guidance of his supportive family.

Submissions

55. I am indebted to Mr Diggins, solicitor for the Director of Public Prosecutions, who provided the oral submissions, and to Ms Buckthought, solicitor for the Director of Public Prosecutions, who provided the written submissions. Both oral and written submissions stress the objective seriousness of the offence which are characterised as very serious, and objectively, in the high range. Particular mention was made of the limited insight still shown by the offender which, even though it is a product of his mental illness, means that his prospects for rehabilitation must be guarded.

56. Mr Diggins made the point that this offence occurred when Nydegger was being both medicated and was getting family support. It was accepted that the material put before the Court by the family confirms that he will maintain his medication regime and that they will in future be more vigilant; but that cannot, given the past history, guarantee that the offending will not occur again. Appropriate concessions are made that there cannot be preventative detention.

57. Court’s cannot, and do not, give guarantees. The offender must be released into the community. He should be released into the community in a better position, and supported so that he can remain in a better position, than what he was in when he committed this offence. His family have made appropriate provision for that to occur.

58. Ms O’Neill, in response, put appropriate emphasis on the offender’s chronic schizophrenia and the likelihood it was a material factor in the commission of this offence. She noted that this is the offender’s first time in custody. Prior to the offending he had been compliant with his medication regime with support from family and treating doctors. He will, she submits, and as is obvious, require support on release to help manage his mental illness and, as Dr Nielssen notes, his long-standing substance abuse problems. While accepting a custodial sentence must be imposed, she submitted that if Nydegger’s underlying problems could be treated and addressed, his prospects were good, and he was unlikely to reoffend.

59. She noted that while he is in custody, he has been compliant, abstinent and is actively seeking help for his long-standing substance abuse problem. She notes that in-custody and release programmes can be made available to him, and that if they are made available, his chance of reoffending would be reduced.

Other cases

60. During the course of discussion and in written submissions reference was made to other cases but this is not a matter where there is a pattern of sentencing judgments. Reference was made to Kilic v The Queen (2016) 259 CLR 256; R v Fouani [2018] NSWCCA 230; and my matter of R v M.F. [2014] NSWDC 136, but they were not matters involving s 47. Mention was made of a s 47 matter in Browning v R [2015] NSWCCA 147.

61. Where guidance if offered by appellant courts, it must be taken into account. So too must be the guidance offered by the decisions of other sentencing courts. But it needs to be made clear that each case and each offender is individual. While a judge must attempt, so far as is practicable, to consistently apply relevant principles, sentencing involves discretionary judgments and the mix of factors that must be weighed will never be precisely the same in a past case or cases.

Structure

62. It is accepted there has to be a custodial sentence. The evidence relating to the offender’s mental illness, his need for drug rehabilitation treatment, his need to maintain prosocial supports in the community, and the fact he will need help adjusting to normal community life on release, all provide a basis for a finding of special circumstances in the structure of the sentence.

63. Nydegger will need treatment in the community. He will need monitoring in the community. He will need supervision in the community, and he should have that monitoring and treatment for as long as practicable. In making this finding, I am mindful of the requirement taking into account all relevant matters that the minimum period for which he should be imprisoned should still, to some degree, reflect the gravity of his offence and the many purposes of sentencing.

Synthesis

64. Synthesising all those matters I start by accepting that Nydegger has a long-standing mental illness; schizophrenia. There is a connection between his schizophrenia, the delusions under which he was operating, and the commission of this offence. He has a substance use disorder that needs to be addressed and, if not addressed, could interfere with his underlying mental illness. He needs long-term treatment. He needs supervision by a psychiatrist, to an extent unlikely to be provided in gaol as it could be in the community. Although his is now stable, new medication may be required.

65. His longer term prognosis is closely related to that treatment continuing and how he deals with his substance use disorder. He will need to participate in further substance related counselling and perhaps full-time drug rehabilitation programs. He will need to be monitored and that means monitoring as to abstinence from methamphetamine and cannabis: Dr Nielssen’s report at page 10.

66. His release to the community will be dependent upon the decision of the State Parole Authority. They will not release him unless they are satisfied the community safety considerations can be met: Crimes (Administration of Sentencing) Act 1999 (NSW), s 136.

67. Under the influence if his illness and while subject to delusional beliefs, based on delusional recovered memories and, it would appear, voices that he heard shortly before the commission of the crime, he committed a grave crime with very serious and significant lifelong consequences to Mr Gibson, consequences that have both physical and mental manifestations. Nydegger’s prognosis is, at best, guarded, given he committed the offence while taking his depot medication and while his illness was apparently in remission.

68. The Court will give full weight to the impact of that illness. It has impacted on the matters I have to synthesise in a large number of ways. It reduced his moral culpability, his blameworthiness. While the causal connection cannot be double counted, the connection between that illness and the offender’s acts towards Mr Gibson are clear.

69. As Justice Basten, in R v Windle, reminded us, the criminal law is not the most appropriate mechanism for protecting society where the potential danger is a result of mental illness. Gaol, lengthy periods in gaol, where access to treatment is limited, are very, very blunt instruments of community protection. They are not appropriate places for those with a longstanding mental illness. Significant weight must therefore be given to the principles I have noted above.

70. With that said, where a person has entered a guilty plea to a very serious offence and caused significant harm, the crime and the consequences of an offenders’ actions must be recognised. Mr Gibson must be vindicated, and the harm done to him, his dignity and his humanity, recognised.

71. The orders that I am about to make reflect a finding of special circumstances. The sentence was reduced by 25% to reflect the utilitarian value of the guilty plea.

Orders

72. There will be a sentence of imprisonment of 6 years and 9 months. There will be a non-parole period of 4 years and 4 months. It will date from 19 June 2022. Nydegger will be eligible for consideration for release to parole on 18 October 2026. The parole period of 2 years and 5 months will start on that date. The total sentence will expire on 18 March 2029. Total sentence: 6 years, 9 months. Non-parole period: 4 years, 4 months. Commencement: 19 June 2022. Parole eligibility date: 18 October 2026. Balance of term: 2 years, 5 months. Total sentence expires on: 18 March 2029.

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Amendments

12 April 2024 - Amended typographical error.

24 October 2024 - Amended typographical error.

Decision last updated: 24 October 2024