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Supreme Court 28 March 2025

R v White

[2025] NSWSC 243

Assault & violenceHomicidePublic order & justice offences
CRIME SENTENCING WRONGFUL DEATH ARMED WITH A KNIFE IN HER HOME VERDICT OF GUILTY WHETHER CUSTODIAL SENTENCE WARRANTED

Citation: R v White [2025] NSWSC 243
Court: Supreme Court of New South Wales
Date: 28 March 2025
Judge: Harrison CJ at CL

Background

A police constable was convicted by jury on 27 November 2024 of the manslaughter of a 95-year-old woman residing in an aged care facility in Cooma, New South Wales. The deceased was a frail resident with mobility difficulties who required a walking frame, and was displaying symptoms consistent with dementia, though no formal diagnosis had been made at the time of her death.

In the early hours of 17 May 2023, staff called emergency services after the deceased retrieved kitchen knives and entered other residents' rooms. Police attended alongside paramedics just before 5am. Body-worn camera and CCTV footage recorded the full interaction: the deceased moved slowly with her walker toward the doorway while holding a knife, and did not respond verbally or otherwise to anything said to her. The constable deployed his taser at 5.09am, striking her in the chest and lower abdomen. She fell backwards, struck her head heavily on the floor, and sustained injuries that proved non-survivable. She died seven days later on 24 May 2023.

Sentencing proceeded on the basis that the jury, having heard the Crown's case put on two alternative grounds, returned a guilty verdict for manslaughter. The sentencing remarks addressed both the factual basis of the verdict and the appropriate penalty.

  • On which of the two alternative bases (manslaughter by unlawful and dangerous act, or manslaughter by criminal negligence) did the jury arrive at its verdict, and what were the consequences for sentencing?
  • Where on the spectrum of objective seriousness did this offending fall?
  • Whether a custodial sentence was warranted, or whether a non-custodial order was appropriate given the objective seriousness of the offence and the offender's subjective circumstances.

Decision

The Crown submitted at the sentencing hearing that the court would be satisfied the constable's liability was properly characterised as manslaughter by criminal negligence, on the basis that he owed a duty of care to the deceased when exercising his lawful powers, and that his decision to deploy the taser fell so far short of the standard of a reasonable person as to attract criminal punishment. The Crown argued this represented a slightly higher degree of culpability than the unlawful and dangerous act alternative.

Harrison CJ at CL accepted that both paths to liability were viable on the evidence, and proceeded to make findings on the facts to the requisite standard. The court found that the offending fell at the lower end of objective seriousness for manslaughter, a characterisation the Crown itself did not contest. The death was not placed in the worst category of wrongful killing.

On the question of penalty, the court determined that a custodial sentence was not warranted and would be disproportionate to both the objective gravity of the offence and the offender's subjective circumstances. The court also took into account a letter of apology from the offender.

Harrison CJ at CL included extended remarks addressing the broader community interest in the sentencing outcome, observing that sentencing is a complex task requiring consideration of numerous and sometimes contradictory factors, and that the worth of the criminal justice system cannot be measured by any individual's agreement with a particular sentencing result.

Orders Made

  • The offender was placed on a Community Correction Order for 2 years commencing 28 March 2025, pursuant to s 8(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Standard conditions applied: no commission of any offence; appearance before the court if called upon.
  • Additional condition imposed: 425 hours of community service work and supervision by a community corrections officer.
  • The offender was directed not to leave the court precinct before signing the Order at the Registry, and to notify the Supreme Court Registry of any change of address during the Order's duration.

Key Takeaways

  • The Supreme Court held that, where a jury returns a guilty verdict on manslaughter charged on alternative bases, the sentencing judge is required to determine which basis the jury most likely relied upon, as this affects the findings of fact underpinning sentence.
  • Manslaughter by criminal negligence requires proof that the act fell so far short of the standard of a reasonable person in the circumstances, and involved such a high risk of death or really serious bodily harm, that it merited criminal punishment. The constable's deployment of a taser against a frail, elderly, cognitively impaired woman met that threshold.
  • An offence of manslaughter does not automatically attract a custodial sentence. Under s 5(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court must not impose imprisonment unless satisfied that no other sentence is appropriate, and the court here determined a Community Correction Order was the proportionate response.
  • Objective seriousness exists on a spectrum even within the category of manslaughter. This court placed the offending at the lower end of that spectrum, reflecting the particular circumstances of the incident rather than treating all wrongful deaths as equivalent.
  • Harrison CJ at CL emphasised that public confidence in the criminal justice system does not depend on agreement with any specific outcome, and that sentencing requires careful consideration of multiple, sometimes competing, statutory purposes rather than an immediate or instinctive response.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1), 8, 21A(2)(l), 21A(3)(i), 21A(3)(f), 67(1)(a), 88(1), 89

Cases:
- Brzozowski v R [2023] NSWCCA 129
- Davidson v R (2022) 300 A Crim R 214; [2022] NSWCCA 153
- Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54
- Paterson v R [2021] NSWCCA 273
- R v ANG [2001] NSWSC 758
- R v Armstrong (Supreme Court (NSW), 25 August 1995, unrep)
- R v Dally (2000) 115 A Crim R 582; [2000] NSWCCA 162
- R v Eckersley [2021] NSWSC 562
- R v Forbes (2005) 160 A Crim R 1; [2005] NSWCCA 377
- R v Gary Gow [2006] NSWDC 78
- R v HA [2008] NSWSC 1368
- R v Hall (1999) 108 A Crim R 209; [1999] NSWSC 738
- R v Hoerler (2004) 147 A Crim R 520; [2004] NSWCCA 184
- R v Loveridge (2014) 243 A Crim R 31; [2014] NSWCCA 120
- R v MD, BM, NA, JT (2005) 156 A Crim R 372; [2005] NSWCCA 342
- R v Wood (2014) 244 A Crim R 501; [2014] NSWCCA 184