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

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.
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.…

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 R v Nydegger

Details

AGLC: R v Nydegger [2023] NSWDC 619
Case: [2023] NSWDC 619
Decision Date: 15 September 2023

CaseChat Overview and Summary

The appellant, Nydegger, was convicted of using a substance likely to cause an explosion or explosion that could endanger life or cause substantial damage. The matter came before the court for sentencing. The central issue for the court was determining an appropriate sentence that balanced the objectives of sentencing, including punishment, deterrence, denunciation, and rehabilitation, in light of the specific circumstances of the case. The court had to consider various factors, such as the nature of the offence, the harm caused, the appellant's mental health condition, and his early guilty plea.

The court began by assessing the gravity of the offence, noting the potential for significant harm and the objective seriousness of the crime. It gave weight to the appellant's plea of guilty, which was reflected in the sentence. The court considered the appellant's mental health, specifically his schizophrenia, which impacted his moral culpability and the relevance of denunciation. The court also examined the impact on the victims and the need for general and specific deterrence. Balancing these factors, the court applied the principles of instinctive synthesis to arrive at a sentence that was proportionate to the offence and served the broader purposes of sentencing.

In arriving at the final sentence, the court determined a term of imprisonment of 6 years and 9 months, with a non-parole period of 4 years and 4 months. This sentence took into account the appellant's personal circumstances, including his mental health and the likelihood of rehabilitation, while also fulfilling the need to protect the community and uphold the law. The court's decision was rooted in a comprehensive assessment of all relevant factors, ensuring that the sentence was just and appropriate given the unique context of the case.

Orders

Orders of the court

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v Nydegger [2023] NSWDC 619

Most Recent Citation

Nydegger v The King [2024] NSWCCA 232

Cases Citing This Decision

Nydegger v The King [2024] NSWCCA 232
Citation 1 (Para 1)

…ut 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.…
R v Colvin [2024] NSWDC 281
Citation 2 (Para 35)

…In R v Nydegger [2023] NSWDC 619 I drew from what Basten JA said in R v Windle [2012] NSWCCA 222, to conclude that the criminal law is not the most appropriate mechanism for protecting society where the potential danger is a result of mental illness. Gaol terms, lengthy periods in gaol where access to treatment is…

See all citing cases →

Cases Cited

DS v R; DM v R [2022] NSWCCA 156
Citation 1 (Para 16)

…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 sentencin…
Paterson v R [2021] NSWCCA 273
Citation 2 (Para 14)

…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 [2…
Tepania v The Queen [2018] NSWCCA 247
Citation 3 (Para 14)

…ion 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]-[…
R v Fouani [2018] NSWCCA 230
Citation 4 (Para 60)

…ses 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] NSWCC…
R v Kilic [2016] HCA 48
Citation 5

…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 v Tuala [2015] NSWCCA 8…
Browning v R [2015] NSWCCA 147
Citation 6 (Para 60)

…] 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.…
R v Tuala [2015] NSWCCA 8
Citation 7 (Para 31)

…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.…
R v M.F [2014] NSWDC 136
Citation 8 (Para 60)

…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.…
R v Windle [2012] NSWCCA 222
Citation 9 (Para 52)

…In R v Windle [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…
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Citation 10 (Para 48)

…, 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:…
R v Dinh [2010] NSWCCA 74
Citation 11 (Para 13)

…he 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…
R v Verdins [2007] VSCA 102
Citation 12 (Para 48)

…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:…
DPP v DJK [2003] VSCA 109
Citation 13 (Para 30)

…unity’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].…
Cheung v The Queen [2001] HCA 67
Citation 14 (Para 14)

…73 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].…
Veen v The Queen (No 2) [1988] HCA 14
Citation 15 (Para 50)

…oses 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…
Neal v The Queen [1982] HCA 55
Citation 16 (Para 14)

…ive, 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].…

Legislation Cited

Crimes (Administration of Sentencing) Act 1999 (NSW) 136
2 mentions (from Para 66)
Court Suppression and Non-publication Orders Act 2010 (NSW)
1 mention
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 23)
Crimes Act 1900 (ACT)
1 mention (from Para 10)

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