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10
Court of Criminal Appeal 30 July 2025

R v White

[2025] NSWCCA 111

Homicide
SENTENCING CROWN APPEAL AGAINST SENTENCE NON WHETHER SENTENCE MANIFESTLY INADEQUATE STRONG SUBJECTIVE CIRCUMSTANCES HONEST ERROR OF JUDGE MENT

Citation: R v White [2025] NSWCCA 111
Court: Court of Criminal Appeal, New South Wales
Date: 30 July 2025
Judges: Bell CJ (principal judgment); Payne JA and N Adams J agreeing

Background

A police constable was convicted by jury of manslaughter following the death of an elderly aged care resident in Cooma. The constable had deployed a taser against the woman at the Yallambee Lodge aged care facility on 24 May 2023. The victim, who was carrying a knife at the time, died seven days later. She was elderly and frail.

The sentencing judge, Harrison CJ at Common Law, imposed a Community Correction Order (CCO) of two years with standard conditions, plus 425 hours of community service. No term of imprisonment was imposed. The sentencing judge characterised the constable's conduct as an "error of judgment," finding that he had patently overestimated both the existence and the level of the threat posed by the victim.

The Crown appealed the sentence to the Court of Criminal Appeal, arguing it was manifestly inadequate and that the sentencing judge had made several errors in the sentencing process.

  • Whether the sentencing judge erred by relying on a purported Crown concession that the constable held an "honest belief" his use of force was necessary
  • Whether the sentencing judge's assessment of the objective seriousness of the offence was erroneous
  • Whether the sentencing judge erred in finding that general deterrence had "little to no role" or "only a minor role" in the sentence
  • Whether the sentence was manifestly inadequate, given that manslaughter ordinarily attracts a custodial sentence
  • Whether, even if manifest inadequacy were established, the Court should exercise its residual discretion to decline to intervene

Decision

Ground 1: Honest belief and error of judgment

Bell CJ found that the Crown's first ground overstated the degree to which the sentencing judge had relied on any concession by the Crown about the constable's state of mind. The sentencing judge made independent findings that the conduct constituted an "error of judgment," and the concept of an error of judgment inherently encompasses honest conduct. No error was established on this ground.

Grounds 2 and 3: Objective seriousness and general deterrence

The Court found no error in the sentencing judge's assessment of objective seriousness or his observation that general deterrence had only a minor role to play. Bell CJ noted that grounds 2 and 3 were, on proper analysis, complaints about the weight the sentencing judge gave to those factors in the exercise of the sentencing discretion. Such complaints do not, without more, establish appellable error.

Ground 4: Manifest inadequacy

The Court acknowledged the sentence was lenient but held it was not manifestly inadequate. A manslaughter conviction does not, in the exceptional circumstances of this case, mandate a custodial sentence. The sentencing judge was entitled to take into account the constable's strong subjective circumstances: no malice, no ongoing risk to the community, significant extra-curial punishment (including loss of employment and inability to remain in his local community), and an honest error of judgment made in the course of police duties.

Residual discretion

Even had manifest inadequacy been established, the Court declined to exercise its residual discretion in the Crown's favour. The highly unusual circumstances of the offending made the case an inapt vehicle for laying down general sentencing principles or ensuring consistency in sentencing. The constable's health had deteriorated significantly since sentencing, and he had already completed a not insubstantial portion of the CCO, having served 120 hours and 25 minutes of the 425-hour community service requirement. Those factors, taken together, weighed against intervention.

Orders Made

  • Crown appeal dismissed.

Key Takeaways

  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that a non-custodial sentence for manslaughter is not precluded as a matter of law, even though such sentences will be rare. Exceptional subjective circumstances can justify departing from the usual expectation of imprisonment.
  • A sentencing judge's findings about an offender's honest state of mind do not need to rest solely on a Crown concession. Where the judge independently characterises conduct as an "error of judgment," that characterisation itself carries a finding of honest conduct.
  • Grounds of appeal framed as errors in assessing "objective seriousness" or "general deterrence" will not succeed if they amount, on analysis, to a disagreement with the weight the sentencing judge assigned to those factors in a discretionary exercise.
  • The residual discretion to decline to resentence on a Crown appeal may be exercised where the case is highly unusual, making it unsuitable as a vehicle for establishing general sentencing principles, and where the offender has already served a significant portion of the sentence imposed.
  • Extra-curial punishment, including loss of employment and forced displacement from one's community, remains a legitimate consideration when assessing the totality of punishment an offender has experienced.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 18(1)(b) (manslaughter)
- Criminal Appeal Act 1912 (NSW) s 5D (Crown appeal against sentence; residual discretion)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5(1), 8(1), 88(1), 89(1), 30E(3) (sentencing purposes; Community Correction Orders)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 230

Key Cases
- Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
- Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
- Elias v R (2013) 248 CLR 483; [2013] HCA 31
- Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49
- CMB v Attorney General for NSW (2015) 256 CLR 346; [2015] HCA 9
- Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49
- Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54
- Director of Public Prosecutions (DPP) v Sewell [2024] VSCA 70
- DPP v Kenneison [2023] VSCA 321
- Ahmad v R [2021] NSWCCA 30
- Baladjam v R [2018] NSWCCA 304; (2018) 341 FLR 162
- Fuller v R [2022] NSWCCA 203
- Fitzgerald v R [2015] NSWCCA 266
- Elyard v R [2006] NSWCCA 43; (2006) 45 MVR 402
- Boulton v R; Clements v R; Fitzgerald v R (2014) 46 VR 308; [2014] VSCA 342
- Green (a pseudonym) v R [2025] NSWCCA 16
- G v R [2021] NSWCCA 50
- BT v R [2012] NSWCCA 128