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Court of Criminal Appeal 9 November 2026

Black v R; Trautsch v R

[2026] NSWCCA 185

Assault & violenceFirearms & weaponsPublic order & justice offences
CRIME APPEALS APPEAL AGAINST SENTENCE COMMON ASSAULT GRATUITOUS CRUELTY OBJECTIVE SERIOUSNESS

Citation: Black v R; Trautsch v R [2026] NSWCCA 185
Court: Court of Criminal Appeal
Date: 9 November 2026
Judge(s): Dhanji J (at [1]), McNaughton J (at [137]), Coleman J

Background

Two serving police officers pleaded guilty in the District Court to common assault and unauthorised use of a prohibited weapon (OC spray) arising from their treatment of a mentally ill woman during an attempt to transport her to a mental health facility. One officer also pleaded guilty to two counts of intentionally communicating protected information under the Surveillance Devices Act, relating to the sharing of body-worn video footage with a colleague. The offending was captured on both body-worn video and CCTV, which the sentencing judge described as speaking for themselves.

The District Court sentenced one officer to an aggregate of 5 years and 9 months imprisonment (non-parole period 3 years and 3 months) and the other to 5 years and 6 months (non-parole period 3 years). Both applied for leave to appeal against sentence.

The Court of Criminal Appeal granted leave, found error on two principal grounds, and resentenced both applicants to shorter aggregate terms.

Legal Issues

  • Whether the sentencing judge erred in finding the assault offence was aggravated by "gratuitous cruelty" under s 21A(2)(f) of the Crimes (Sentencing Procedure) Act 1999 (NSW), when the violent conduct constituted the gravamen of the offence itself
  • Whether the same aggravating factor was properly found with respect to the prohibited weapon offence
  • Whether it was double-counting to find the offences aggravated by both a breach of trust and a breach of authority under s 21A(2)(k), without articulating what one factor added to the other
  • Whether the sentencing judge's finding about a third psychiatrist's views on one officer's mental health history was reasonably open
  • Whether the sentencing judge failed to make a proper finding as to remorse
  • Whether new evidence (a hospital discharge summary) should be admitted on resentence
  • How the conditions of custody experienced by former police officers should be reflected in the resentencing exercise

Decision

Ground 1 (Gratuitous Cruelty — Assault Offence): The Court held that the sentencing judge erred in finding the assault offence was aggravated by gratuitous cruelty under s 21A(2)(f). An offence of assault necessarily involves unlawful contact or the apprehension of violence. Where the acts constituting the alleged cruelty also constitute the offence itself, finding an additional aggravating factor risks impermissible double counting (at [28]-[34]). The brutality of the assault was real, but it was already captured in the assessment of objective seriousness, in the finding of vulnerability, and in the finding of abuse of authority. Crucially, the sentencing judge did not find the applicants derived enjoyment from the assault; the violence reflected anger and frustration in a situation of their own making (at [38]-[44]). The error was not merely technical: the finding had forensic significance in the sentencing exercise and could realistically have affected the outcome (at [45]).

Ground 1 (Gratuitous Cruelty — Prohibited Weapon Offence): The Court distinguished the prohibited weapon offence. Because violence or assault is not an element of the offence of unauthorised use of a prohibited weapon, the infliction of pain through the sustained and targeted use of OC spray on a vulnerable, non-threatening victim was capable of grounding a finding of gratuitous cruelty (at [46]-[50]). This aspect of Ground 1 failed.

Ground 2 (Dual Aggravation — Breach of Trust and Breach of Authority): The Court accepted that both a position of trust and a position of authority can, in principle, separately aggravate the same offence, but only where the sentencing court articulates what one factor adds to the other, following the approach in MRW v R [2011] NSWCCA 260 (at [59]-[60]). In this case, no such articulation was provided. The trust and authority derived from the same occupational relationship, and to the extent a breach of trust existed beyond the breach of authority, it was already captured by the separate finding of the victim's vulnerability (at [62]-[65]). Error was established.

Ground 3 (Dr Neale's Views on Mr Black's Mental Health): The respondent conceded, and the Court accepted, that the sentencing judge's finding that a consulting psychiatrist was "not particularly convinced" about pre-existing psychiatric complaints was not reasonably open on the evidence. That psychiatrist had assessed the applicant for a different purpose and had accepted the diagnoses were present (at [66]-[72]).

Ground 4 (Failure to Find Remorse — Mr Black): This ground was rejected. Read fairly and in context, the sentencing judge's discussion of the evidence made plain his Honour did not accept the remorse case and proposed to give it minimal weight. That was a sufficient, if imprecise, finding (at [75]-[77]). The issue was nevertheless revisited on resentence.

Ground 5 (New Evidence — Mr Trautsch): The Court refused to admit a hospital discharge summary tendered to support a claim Mr Trautsch had been bitten by the victim. The evidence could not establish a deliberate assault, could not establish when any injury occurred or when the applicant became aware of it, and would not have assisted his case on resentence. Good forensic reasons existed for not adducing it at first instance (at [88]-[91]).

Resentence: On resentencing, the Court made findings of gratuitous cruelty only with respect to the prohibited weapon offence. The breach of trust and breach of authority were treated as co-extensive (at [94]-[95]). Mental health evidence for both applicants was accepted as relevant to the weight given to general deterrence, though insufficient to establish a material contribution to the offending (at [111]-[117]). Both applicants were found to be remorseful (at [121]). The significantly more onerous conditions of custody experienced by former police officers were accepted and given weight, including through a finding of special circumstances (at [123]-[125], [133]).

Orders Made

Mr Trautsch:
- Leave to appeal granted
- Appeal allowed
- Evidence sought to be admitted under Ground 5 rejected
- Sentence imposed 8 August 2025 quashed; in lieu, sentenced to 3 years imprisonment commencing 8 August 2025 and expiring 7 August 2028, with a non-parole period of 2 years expiring 7 August 2027

Mr Black:
- Leave to appeal granted
- Appeal allowed
- Sentence imposed 8 August 2025 quashed; in lieu, sentenced to 3 years and 2 months imprisonment commencing 8 August 2025 and expiring 7 October 2028, with a non-parole period of 2 years and 1 month expiring 7 September 2027

Key Takeaways

  • Under s 21A(2)(f) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a finding of gratuitous cruelty will typically require conduct that is ancillary to the primary offence. Where the acts said to constitute the cruelty also constitute the assault offence itself, applying the aggravating factor risks impermissible double counting, and a court will ordinarily capture the full weight of that conduct simply by assessing the objective seriousness of the offending on its facts (at [27]-[34], [37]-[44]).

  • The prohibited weapon offence stands differently: because violence is not an element of unauthorised use of a prohibited weapon, the painful and sustained deployment of OC spray on a defenceless victim can ground a finding of gratuitous cruelty without double-counting concerns (at [48]-[50]).

  • Where a sentencing court finds both a breach of trust and a breach of authority under s 21A(2)(k), it must articulate what one factor adds to the other. Applying both aggravating factors from the same occupational relationship without that analysis constitutes error (at [57]-[65]).

  • Section 21A factors are, in the words of Dhanji J, "all too commonly the tail that wags the dog." Their listing in the Act was intended to assist the sentencing exercise, not to supplant the fundamental assessment of objective seriousness, and care must be taken to avoid aggravating factors doing work already performed by an accurate account of the facts (at [25]-[26]).

  • Significantly more onerous conditions of custody, demonstrated by evidence of threats and restricted placement options arising from an offender's former occupation as a police officer, may support both a finding of special circumstances and moderation of the overall sentence (at [123]-[125], [133]).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW) , ss 5, 21A, 25D(2)(b), 53A(2)(b)
- Crimes Act 1900 (NSW), ss 35(1)(a) (repealed), s 35(4), 61
- Criminal Appeal Act 1912 (NSW) , s 5(1)(c)
- Mental Health Act 2007 (NSW)
- Surveillance Devices Act 2007 (NSW), s 40(1)
- Weapons Prohibition Act 1998 (NSW), ss 3, 7(1)

Cases
- Aguirre v R [2010] NSWCCA 115
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Couloumbis v R [2012] NSWCCA 264
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Director of Public Prosecutions v Rogers [1953] 2 All ER 644; [1953] 1 WLR 1017
- Dungay v R; R v Dungay [2010] NSWCCA 82
- Elyard v R [2006] NSWCCA 43
- Fairclough v Whipp [1951] 2 All ER 834; (1951) 35 Cr App R 138
- Farrugia v The King [2026] HCA 28; (2026) 100 ALJR 1060
- Fisher v R [2026] NSWCCA 27
- Gurney v R; Willetts v R [2011] NSWCCA 48
- Hancock v The King (2025) 119 NSWLR 183; [2025] NSWCCA 213
- Jacono v R [2026] NSWCCA 120
- Koosmen v R [2025] NSWCCA 122
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439
- Melvaine v R [2019] NSWCCA 274
- MRW v R [2011] NSWCCA 260
- Olsen v R [2005] NSWCCA 243
- R v McNamara [1954] VLR 137; [1954] ALR 291
- R v Sabbah [2025] NSWCCA 203
- R v Sargeant (1974) 60 Cr App R 74
- R v Venna [1976] QB 421; [1975] 3 All ER 788
- R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
- R v Yildiz [2006] NSWCCA 97; (2006) 160 A Crim R 218
- Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
- Suleman v R [2009] NSWCCA 70
- Taylor v R [2026] NSWCCA 32
- The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48
- TMTW v R [2008] NSWCCA 50
- Waterfall v R [2019] NSWCCA 281