R v White

1. [1]

   HIS HONOUR: Kristian White was found guilty by a jury following trial of the manslaughter of Clare Nowland on 24 May 2023. Ms Nowland was at the time of the incident that led to her death a resident in the Yallambee Lodge aged care facility in Cooma, New South Wales. She was then 95 years of age, physically frail and required a mobile walker to assist with her ambulation. Ms Nowland was also apparently suffering from the signs of undiagnosed dementia.

2. [2]

   During the course of the early morning of 17 May 2023, between the hours of approximately 2am and 4am, Ms Nowland was detected moving about in the nursing home, including the corridors of the administration building and the kitchen of one of the residential houses. Ms Nowland is also known to have entered the rooms of some other of the residents. Ms Nowland was at these times in possession of a steak knife which she held or carried in her right hand.

3. [3]

   Ms Nowland eventually ended up seated on a chair in the nurses’ room in the administration building. She still had the knife. However, before Ms Nowland arrived in that location, staff at the nursing home had called for an ambulance to assist them to deal with the situation with which they were confronted. In due course the police also attended, including Mr White. In circumstances to which it is presently unnecessary to record in detail, Ms Nowland was struck by a taser fired at her by Mr White as she walked slowly from the nurses’ room wielding the knife. Ms Nowland became immediately incapacitated by the taser and collapsed backwards to the floor where she struck her head. She died some days later from injuries that she sustained in that fall.

4. [4]

   Upon the return of the verdict, the Crown applied for a detention order pursuant to s 22B of the Bail Act 2013. Mr White is currently, and has been since he was charged with the unlawful killing of Ms Nowland, at liberty in the community on conditional bail. Despite the imposition of those conditions, none would appear to be framed to ameliorate any genuine bail concern within the meaning of, or identified by, s 17(2) of the Bail Act. Mr White has in any event complied with these conditions to date.

5. [5]

   Section 22B of the Bail Act provides relevantly as follows:

6. [6]

   Without elaborating upon the details of the Crown’s submissions, it is sufficient to note at this stage that the Crown maintains that Mr White is a person who will be sentenced to imprisonment to be served by full-time detention and that he has not established that special or exceptional circumstances exist that would justify a decision to grant bail. Mr White maintains that the imposition of a sentence of imprisonment to be served by full-time custody is not inevitable but says in any event that I could not be satisfied that adequate and realistic details of the anticipated custodial conditions to which he is likely to be exposed between now and when he is sentenced, having regard to his occupation as a sworn member of the New South Wales Police Service, have yet emerged. I acknowledge in that last respect my concern that there is a need in the present case for Mr White’s particular circumstances properly and reliably to be assessed, having regard to what is known about the risk of victimisation of, and gratuitous violence directed to, convicted police officers by other inmates in so-called correctional facilities. The existence of that risk is not controversial.

Special or exceptional circumstances

1. [7]

   On the question of Mr White’s anticipated custodial conditions, the Crown tendered the statement of Detective Sergeant Mitchell Bosworth dated 28 November 2024, which was read without objection. The following extracts from that statement should be noted:

2. [8]

   Detective Sergeant Bosworth’s statement also attached a letter from Jeremy Tucker, Director - Parliamentary and Executive Services, dated 27 November 2024 in the following terms:

3. [9]

   No submissions were made on behalf of Mr White to suggest that the arrangements referred to and described by Detective Sergeant Bosworth and Jeremy Tucker would not be adequate or sufficient to ensure his protection if or when he were taken into custody. Subject to one matter, I am satisfied that these arrangements are satisfactory and that Mr White cannot establish the existence of special or exceptional circumstances that would, standing alone, justify a decision to grant bail. Nor are Mr White’s personal family and domestic circumstances, as deposed to by his partner Hannah Birkinhead in her affidavit affirmed 27 November 2024, sufficient to establish the existence of special or exceptional circumstances.

4. [10]

   The one matter to which I wish to draw attention is Mr Tucker’s reference to the preparation and approval process taking approximately one week to finalise. In the event that Mr White were ultimately taken onto custody, I would want to be satisfied that the process referred to had in fact been finalised before that occurred.

Is Mr White a person who will be sentenced to imprisonment to be served by full-time detention?

1. [11]

   The answer to this question calls for an examination and application of the terms of s 22B of the Bail Act. The structure of that section and its construction were considered in Director of Public Prosecutions (NSW) v Van Gestel (2022) 109 NSWLR 136; [2022] NSWCCA 171 at [13]-[19]:

2. [12]

   The Crown referred me to the second reading speech in the legislative assembly on 21 June 2022 concerning what was then the Bail Amendment Bill 2022. The Court in Van Gestel was also referred to this speech, reproduced in the judgment at [41] as follows:

3. [13]

   It is also helpful and informative to have regard to what the Court in Van Gestel said at [42]-[45]:

4. [14]

   Implicit in these remarks is a recognition of the fact that, in most cases, the court sitting as the bail authority will not also be the court that sentences the offender. This is not, for obvious reasons, such a case. I am presently being asked by the Crown to revoke Mr White’s bail in circumstances where the test of whether he “will” be sentenced to full-time imprisonment aligns with a decision that in due course will have to be made by me. I am in the circumstances of this case speaking only for myself, but there is to my mind a considerable tension between a statutory requirement that I should make an assessment in the present circumstances based on imperfect material when it is not possible to predict what outcome might follow at a sentencing hearing inevitably to be based on, and with the significant advantage of, considerably different material. I am also particularly troubled that a decision either to continue Mr White’s bail or to revoke it carries in each case at least the possible appearance of prejudgment when I finally come to decide what sentence to impose.

5. [15]

   Moreover, given the notoriously protean nature of manslaughter offences, and the extraordinary range of possibilities between 25 years imprisonment and a non-custodial sentence, I am not prepared to say in what I consider to be an acceptably judicial way that it is realistically inevitable that Mr White will be sentenced to imprisonment to be served by full-time detention.

6. [16]

   There is an additional and significant reason for that. This case is unlike any other that I have had to confront. It is unique in my experience, not merely rare or unusual. For example, Ms Nowland’s death resulted from what was on almost any view a failure by Mr White correctly to assess the seriousness of the threat confronting him or on another view, a failure to recognise or appreciate that he was not confronted with a serious threat at all. It was no more and no less than an error of judgment with fatal consequences. In describing what occurred in these terms, I do not intend to minimise or derogate from the seriousness of what transpired as a result of that mistake. However, the consequences of the mistake are not the only factors that inform the nature of the sentence that the mistake should attract.

7. [17]

   For example, Mr White did not intend to kill or seriously injure Ms Nowland. Mr White did not act out of anger, or malice, or revenge, or retribution, or envy, or jealousy, or avarice, or greed, or some misplaced desire to inflict harm or to avoid detection for some crime. Mr White made a significant mistake in the course of his work. The fact that the jury’s verdict represents a conclusion that Mr White’s actions should be punished as a crime does not alone foreclose upon the ultimate sentencing outcome.

8. [18]

   In passing these remarks I should not want to give unwarranted hope to Mr White that he will avoid a sentence of full-time imprisonment or to cause distress or frustration to those whose reasonably available and strongly held view is that nothing less than such a result would be appropriate. I am simply not comfortable making, and I am not prepared at this stage to make, a decision as a bail authority with respect to Mr White based on a conclusion that he “will be sentenced to imprisonment to be served by full-time detention” when that decision can at present only rest on materials that are not only unlikely to be complete, but are certain to be incomplete.

9. [19]

   In these circumstances I make the following orders:

   1. (1)

      I refuse the Crown’s detention application.

   2. (2)

      I continue Mr White’s bail until further order on condition that he is of good behaviour, does not travel overseas and does not approach or communicate in any way with any member of the family of Clare Nowland.

   3. (3)

      I adjourn the proceedings for sentencing submissions before me on 7 February 2025.