Australia, Dec. 26 -- New South Wales Land and Environment Court issued text of the following judgement on Dec. 13:

1. 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.

2. 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.

3. 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 offence. Before reduction by 25% for an early guilty plea, the starting point for calculating the sentence was 9 years' imprisonment.

Scope of the factors available on sentencing

4. 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.

5. 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.

6. 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.

7. 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]

8. 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.

9. 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.

10. 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.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/193b7ff8fe2853e47ef21caf)

Disclaimer: Curated by HT Syndication.