Citation: R v White [2024] NSWSC 1527
Court: Supreme Court of New South Wales
Court: Supreme Court of New South Wales
Date: 29 November 2024
Judge(s): Harrison CJ at CL
Background
A serving police officer was found guilty by jury of the manslaughter of a 95-year-old aged care resident following an incident in the early hours of 17 May 2023. The resident, who was physically frail and showing signs of undiagnosed dementia, had been moving through a nursing home in Cooma carrying a steak knife. After police attended the facility, the officer discharged a taser at the woman as she walked slowly from a room. She fell, struck her head, and died from her injuries several days later.
Following the jury's verdict, the Crown applied under s 22B of the Bail Act 2013 for a detention order. The officer had been on conditional bail since being charged, and had complied with all conditions throughout the proceedings.
The central dispute was whether s 22B applied to require the refusal of bail, and specifically whether the Crown had established that the officer would inevitably receive a sentence of full-time imprisonment, and whether the officer had in turn established special or exceptional circumstances justifying continued bail.
Legal Issues
- Whether s 22B of the Bail Act 2013 applied, meaning whether the officer was a person who "will be sentenced to imprisonment to be served by full-time detention"
- Whether satisfactory safeguards existed to protect a serving police officer from victimisation or violence if remanded in custody
- Whether the officer had established special or exceptional circumstances justifying the grant of bail in the post-conviction, pre-sentencing period
Decision
The court addressed the custodial safety question first. Evidence was tendered from Corrective Services NSW (CSNSW) confirming that the officer would be classified as "protection non-association," escorted to the Metropolitan Remand and Reception Centre by a specialist unit, and transferred within approximately one week to the Special Purpose Centre at Long Bay Correctional Complex, a maximum security facility used for inmates requiring ongoing protection. No submissions were made challenging the adequacy of these arrangements. The court was satisfied that these arrangements were sufficient and that, on the question of custodial safety alone, the officer had not established special or exceptional circumstances.
The court then turned to the threshold question under s 22B: whether the officer "will be sentenced to imprisonment to be served by full-time detention." This was identified as the pivotal issue. Section 22B only operates, and the elevated bail threshold only applies, if that conclusion can be reached. The court reviewed the relevant authority and considered the circumstances of the offending in detail.
Harrison CJ at CL characterised the case as unique in his experience. The officer had not acted out of malice, anger, or any improper motive. Rather, the jury's verdict reflected a conclusion that the officer had made a serious error of judgment in assessing the threat posed by a frail elderly woman carrying a knife. The court noted explicitly that a guilty verdict on manslaughter does not by itself foreclose a sentencing outcome short of full-time imprisonment, and that the materials available at this stage of the proceedings were certain to be incomplete.
In those circumstances, the court declined to make the finding that full-time imprisonment was inevitable. Because that threshold under s 22B was not met, the detention application was refused and bail was continued on conditions. The court noted it was not foreclosing any particular sentencing outcome, and expressly acknowledged the strongly held views on all sides of that question.
Orders Made
- The Crown's detention application was refused.
- Bail was continued until further order, subject to conditions that the officer be of good behaviour, not travel overseas, and not approach or communicate in any way with any member of the deceased's family.
- Sentencing submissions were adjourned to 7 February 2025.
Key Takeaways
- Section 22B of the Bail Act 2013 only activates the elevated "special or exceptional circumstances" threshold where a court can conclude that the offender will be sentenced to imprisonment to be served by full-time detention; if that conclusion cannot yet be reached on the available materials, the section does not apply.
- A jury verdict of guilty for a serious offence does not alone satisfy the s 22B threshold. The nature and circumstances of the offending, including the absence of intent to harm and the absence of any improper motive, remain relevant to the question of likely sentencing outcome.
- Where the available pre-sentence materials are certain to be incomplete, the Supreme Court held that it was not prepared to make a forward-looking finding about full-time imprisonment as a basis for refusing bail.
- Concerns about the safety of a convicted police officer in custody did not, on the evidence presented, constitute special or exceptional circumstances. CSNSW's confirmed protocols, including protection non-association classification and transfer to a specialist facility, were found to be satisfactory.
- In refusing the detention application, the court was careful to neither signal that a non-custodial sentence was likely nor to foreclose any particular sentencing outcome, preserving those questions for the sentencing hearing.
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW), ss 17, 22B
Cases
- Director of Public Prosecutions (NSW) v Van Gestel (2022) 109 NSWLR 136; [2022] NSWCCA 171