R v White

[2025] NSWCCA 111

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

R v White [2025] NSWCCA 111

Hearing dates:

27 June 2025

Date of orders:

30 July 2025

Decision date:

30 July 2025

Before:

Bell CJ at [1];
Payne JA at [153];
N Adams J at [154].

Decision:

Appeal dismissed.

Catchwords:

SENTENCING – Crown appeal against sentence – where offender deployed taser in course of responsibilities as police officer – where offender convicted of manslaughter – non-custodial sentence for manslaughter conviction – whether sentence manifestly inadequate – whether sentence imposed unreasonable or plainly unjust – where a number of grounds raised, on proper analysis, went only to weight given to role of general deterrence and assessment of objective seriousness – strong subjective circumstances – honest error of judgement – no ongoing risk posed to the community – no malice – extra-curial punishment – loss of employment – inability to continue to reside in local community – sentence lenient but not manifestly inadequate – where no relevant error in sentencing disclosed

SENTENCING – Crown appeal against sentence – Court of Criminal Appeal’s discretion to intervene – s 5D(1) of the Criminal Appeal Act 1912 (NSW) – residual discretion – purposes of Crown appeals against sentence – unusual circumstances of offending – inapt vehicle for laying down general principles – inapt vehicle for ensuring consistency in sentencing – where offender’s health deteriorated since sentence – where offender already undertaken not insubstantial part of sentence imposed – residual discretion not exercised in favour of Crown

Legislation Cited:

Crimes Act 1900 (NSW) s 18(1)(b)

Criminal Appeal Act 1912 (NSW) s 5D

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5(1), 8(1), 88(1), 89(1), 30E(3)

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 230

Supreme Court Act 1970 (NSW) s 75A

Cases Cited:

Ahmad v R [2021] NSWCCA 30

Baladjam v R [2018] NSWCCA 304; (2018) 341 FLR 162

Boulton v R; Clements v R; Fitzgerald v R (2014) 46 VR 308; [2014] VSCA 342

BT v R [2012] NSWCCA 128

Bugmy v R (2013) 249 CLR 571; [2013] HCA 37

CMB v Attorney General for NSW (2015) 256 CLR 346; [2015] HCA 9

Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54

Director of Public Prosecutions (DPP) v Sewell [2024] VSCA 70

Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54

DPP v Karazisis (2010) 31 VR 634; [2010] VSCA 350

DPP v Kenneison [2023] VSCA 321

Elias v R (2013) 248 CLR 483; [2013] HCA 31

Elyard v R [2006] NSWCCA 43; (2006) 45 MVR 402

Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49

Evgeniou v The Queen (1964) 37 ALJR 508; [1965] ALR 209

Fitzgerald v R [2015] NSWCCA 266

Fuller v R [2022] NSWCCA 203

G v R [2021] NSWCCA 50

Green (a pseudonym) v R [2025] NSWCCA 16

Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49

Griffiths v R (1977) 137 CLR 293; [1977] HCA 44

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45

House v The King (1936) 55 CLR 499; [1936] HCA 40

HT v R (2019) 269 CLR 403; [2019] HCA 40

Khorami v R; R v Khorami [2021] NSWCCA 228

King v R [2015] NSWCCA 99

La Fontaine v R (1976) 136 CLR 62; [1976] HCA 52

Lacey v Attorney-General for the State of Queensland (2011) 242 CLR 573; [2011] HCA 10

Lees v R [2019] NSWCCA 65

Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29

MacBlane v R [2025] NSWCCA 52

Magro v R [2020] NSWCCA 25

Malvaso v R (1989) 168 CLR 227; [1989] HCA 58

Manojlovic v R; R v Manojlovic [2020] NSWCCA 315

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Mulato v R [2006] NSWCCA 282

NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1; [2014] FCAFC 38

Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284

Paterson v R [2021] NSWCCA 273

Pearce v R (1998) 194 CLR 610; [1998] HCA 57

R v AB [2022] NSWCCA 3

R v AD [2020] NSWCCA 275

R v Allpass (1993) 72 A Crim R 561

R v Amati [2019] NSWCCA 193

R v ANG [2001] NSWSC 758

R v Armstrong (Supreme Court (NSW), 25 August 1995, unrep)

R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995, unrep)

R v Clarke [1996] 2 VR 520; (1996) 85 A Crim R 114

R v DKL [2013] NSWCCA 233

R v Eckersley [2021] NSWSC 562

R v Ferguson [2022] NSWCCA 147

R v Fisher [2024] NSWCCA 191

R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1

R v Gary Gow [2006] NSWDC 78

R v HA [2008] NSWSC 1368

R v Ha [2004] NSWCCA 386

R v Hall [1999] NSWSC 738; (1999) 108 A Crim R 209

R v Halloun [2014] NSWSC 1705

R v Hansel [2004] NSWCCA 436

R v Harrison (1997) 93 A Crim R 314

R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111

R v Hernando [2002] NSWCCA 489; (2002) 136 A Crim R 451

R v Holmes (No 7) [2021] NSWSC 570

R v Ingrassia (1997) 41 NSWLR 447; (1997) 91 A Crim R 383

R v Jackson [2024] NSWCCA 156

R v Jacobs Group (Australia) Pty Ltd (2022) 108 NSWLR 377; [2022] NSWCCA 152

R v James [2017] NSWCCA 287

R v Janceski [2005] NSWCCA 288; (2005) 44 MVR 328

R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49

R v Loveridge [2014] NSWCCA 120; (2014) 243 A Crim R 31

R v Mauger [2012] NSWCCA 51

R v McInerney (1986) 42 SASR 111; (1986) 28 A Crim R 318

R v Obbens [2022] NSWCCA 109

R v Phillips(1971) 45 ALJR 467

R v Porte [2015] NSWCCA 174; (2015) 252 A Crim R 294

R v Price [2004] NSWCCA 186

R v Reeves [2014] NSWCCA 154; (2014) 243 A Crim R 558

R v Sara [2020] NSWCCA 119

R v Taylor [2022] NSWCCA 256

R v Tortell, R v Tsegay [2007] NSWCCA 313

R v Troja (Court of Criminal Appeal (NSW),16 July 1991, unrep)

R v XX [2017] NSWCCA 90; (2017) 266 A Crim R 132

R v Y [2002] NSWCCA 191; (2002) 36 MVR 328

R v Yang [2002] NSWCCA 464; (2002) 135 A Crim R 237

R v ZB [2021] QCA 9; (2021) 287 A Crim R 519

Scott v R [2010] NSWCCA 103

Taitoko v R [2020] NSWCCA 43

The King v Singar [2025] NTCCA 1

The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39

Thorneloe v Filipowski (2001) 52 NSWLR 60; [2001] NSWCCA 213

Vincenzo Jon Fedele v R [2015] NSWCCA 286; (2016) 257 A Crim R 78

Wanstall v R [2024] NSWCCA 167

Wong v R (2001) 207 CLR 584; [2001] HCA 64

Texts Cited:

S Krasnostein and A Frieberg “Pursuing consistency in an individualistic sentencing framework: if you know where you’re going, how do you know when you’ve got there?” (2013) 76 Law and Contemporary Problems 265

Category:

Principal judgment

Parties:

The Crown (Appellant)
Kristian White (Respondent)

Representation:

Counsel:

S Dowling SC with K Jeffreys and V Garrity (Appellant)
T Edwards SC with T Lowe (Respondent)

Solicitors:

Office of the Director of Public Prosecutions (NSW) (Appellant)
Anderson Boemi Lawyers (Respondent)

File Number(s):

2023/166133

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common law – Criminal Jurisdiction

Citation:

[2025] NSWSC 243

Date of Decision:

28 March 2025

Before:

Harrison CJ at CL

File Number(s):

2023/166133

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 27 November 2024, following a jury trial of 7 days, Constable Kristian James Samuel White (the Respondent) was convicted of manslaughter for the unlawful killing of Mrs Clare Nowland (Mrs Nowland) on 24 May 2023, contrary to s 18(1)(b) of the Crimes Act 1900 (NSW).

On 28 March 2025, the Respondent was sentenced by Harrison CJ at CL (the sentencing judge) to a Community Correction Order (CCO) for a period of 2 years with the standard conditions, pursuant to ss 8(1) and 88(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the CSP Act). The CCO will expire on 28 March 2027. An additional condition was imposed on the CCO pursuant to s 89(1) of the CSP Act, requiring the Respondent to perform 425 hours of community service work and submit to supervision by a community corrections officer. Three days prior to the hearing of this appeal, the Respondent had completed 120 hours and 25 minutes of the 425 hours ordered.

Mrs Nowland died 7 days after the application of a taser to her by the Respondent at the Yallambee Lodge aged care facility in Cooma. At the time of the offence, Mrs Nowland was carrying a knife, and the Respondent, attending the scene in the course of his responsibilities as a police officer, discharged his taser upon her, in what the sentencing judge described as an “error of judgment” by which the Respondent “patently overestimated both the existence and the level of the threat created by Mrs Nowland in the circumstances.”

The Crown advanced its case before the jury on two bases: manslaughter by criminal negligence or manslaughter by unlawful and dangerous act. The sentencing judge concluded that the jury reached its verdict on the latter basis. The act was unlawful because the application of the taser in the circumstances constituted a disproportionate use of force, and was dangerous because of the risk of injury to Mrs Nowland, having regard to her age and frailty.

The Crown appealed in this Court from the sentence imposed, arguing (as the fourth ground of appeal) that it was manifestly inadequate. The first three grounds of appeal were that the sentencing judge erred in: (1) proceeding on the basis that the parties agreed that the Respondent held an “honest belief” that his conduct was necessary; (2) his Honour’s assessment of the objective seriousness of the offence; and (3) determining that general deterrence had “little to no role” or “only a minor role” to play in the sentence.

The Court (Bell CJ, Payne JA and N Adams J agreeing) held, dismissing the appeal:

1. Discussion of the role of, and constraints upon, the Court of Criminal Appeal on a sentencing appeal, including on a Crown appeal against sentence: [18]-[44] (Bell CJ); [153] (Payne JA); [154] (N Adams J).

R v Allpass (1993) 72 A Crim R 561; Pearce v R (1998) 194 CLR 610; [1998] HCA 57; Bugmy v R (2013) 249 CLR 571; [2013] HCA 37; Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54; Makarianv The Queen (2005) 228 CLR 357; [2005] HCA 25; Elias v R (2013) 248 CLR 483; [2013] HCA 31; Green (a pseudonym) v R [2025] NSWCCA 16; House v The King (1936) 55 CLR 499; [1936] HCA 40; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29; R v Clarke [1996] 2 VR 520; (1996) 85 A Crim R 114; Wong v R (2001) 207 CLR 584; [2001] HCA 64; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45; BT v R [2012] NSWCCA 128; MacBlane v R [2025] NSWCCA 52; Ahmad v R [2021] NSWCCA 30; R v Hernando [2002] NSWCCA 489; (2002) 136 A Crim R 451; CMB v Attorney General for NSW (2015) 256 CLR 346; [2015] HCA 9; Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49; Griffiths v R (1977) 137 CLR 293; [1977] HCA 44; Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49; Lacey v Attorney-General for the State of Queensland (2011) 242 CLR 573; [2011] HCA 10; R v Amati [2019] NSWCCA 193; R v AD [2020] NSWCCA 275; Manojlovic v R; R v Manojlovic [2020] NSWCCA 315; Khorami v R; R v Khorami [2021] NSWCCA 228; R v Taylor [2022] NSWCCA 256; Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54; R v Jacobs Group (Australia) Pty Ltd (2022) 108 NSWLR 377; [2022] NSWCCA 152; HT v R (2019) 269 CLR 403; [2019] HCA 40; Malvaso v R (1989) 168 CLR 227; [1989] HCA 58; R v DKL [2013] NSWCCA 233; R v Price [2004] NSWCCA 186; R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49; DPP v Karazisis (2010) 31 VR 634; [2010] VSCA 350; ); R v Y [2002] NSWCCA 191; (2002) 36 MVR 328; R v Tortell, R v Tsegay [2007] NSWCCA 313; The King v Singar [2025] NTCCA 1; R v Yang [2002] NSWCCA 464; (2002) 135 A Crim R 237; R v Hansel [2004] NSWCCA 436; R v Reeves [2014] NSWCCA 154; (2014) 243 A Crim R 558, referred to.

2. Ground 1 overstated the degree to which the sentencing judge relied on the Crown’s putative concession (regarding the Respondent’s honest belief) in making findings as to the Respondent’s state of mind at the time of the offence. The sentencing judge made independent findings that the Respondent’s conduct constituted an error of judgment and inherent in that concept was that the Respondent acted honestly: [50]-[63] (Bell CJ); [153] (Payne JA); [154] (N Adams J).

3. The sentencing judge did not err in his Honour’s assessment of objective seriousness or his observation that general deterrence had only a minor role to play. In any event, both grounds 2 and 3 were in effect complaints as to the weight accorded to objective seriousness and general deterrence respectively by the sentencing judge in the exercise of his sentencing discretion: [64]-[98] (Bell CJ); [153] (Payne JA); [154] (N Adams J).

Mulato v R [2006] NSWCCA 282; Taitoko v R [2020] NSWCCA 43; Magro v R [2020] NSWCCA 25; R v Sara [2020] NSWCCA 119; NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1; [2014] FCAFC 38; Baladjam v R [2018] NSWCCA 304; Lees v R [2019] NSWCCA 65; Khorami v R; R v Khorami [2021] NSWCCA 228; R v Ferguson [2022] NSWCCA 147; R v Holmes (No 7) [2021] NSWSC 570; R v Forbes [2005] NSWCCA 337; Paterson v R [2021] NSWCCA 273; Fuller v R [2022] NSWCCA 203; Elyard v R [2006] NSWCCA 43; (2006) 45 MVR 402; House v The King (1936) 55 CLR 499; [1936] HCA 40; Bugmy v R (2013) 249 CLR 571; [2013] HCA 37; MacBlane v R [2025] NSWCCA 52; Ahmad v R [2021] NSWCCA 30; R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111; R v Harrison (1997) 93 A Crim R 314, cited.

R v Loveridge [2014] NSWCCA 120; (2014) 243 A Crim R 31; R v Ha [2004] NSWCCA 386; Scott v R [2010] NSWCCA 103; Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284; G v R [2021] NSWCCA 50; Vincenzo Jon Fedele v R [2015] NSWCCA 286; R v Porte [2015] NSWCCA 174; Fitzgerald v R [2015] NSWCCA 266, referred to.

4. The sentence imposed, albeit lenient, was not manifestly inadequate. Conviction of the offence of manslaughter did not, in the exceptional circumstances of this case, mandate a custodial sentence. The sentencing judge did not err in considering the Respondent’s strong subjective circumstances, including both his loss of employment and his inability to continue to reside in his local community: [99]-[134] (Bell CJ); [153] (Payne JA); [154] (N Adams J).

R v Fisher [2024] NSWCCA 191; R v Sara [2020] NSWCCA 119; R v Jackson [2024] NSWCCA 156; Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54; R v Janceski [2005] NSWCCA 288; (2005) 44 MVR 328; R v James [2017] NSWCCA 287; R v XX (2017) 266 A Crim R 132; [2017] NSWCCA 90; in Manojlovic v R; R v Manojlovic [2020] NSWCCA 315; Wanstall v R [2024] NSWCCA 167; Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54; R v McInerney (1986) 42 SASR 111; (1986) 28 A Crim R 318; R v Ingrassia (1997) 41 NSWLR 447; (1997) 91 A Crim R 383; Thorneloe v Filipowski (2001) 52 NSWLR 60; [2001] NSWCCA 213; R v Mauger [2012] NSWCCA 51; R v ZB [2021] QCA 9; (2021) 287 A Crim R 519; R v AB [2022] NSWCCA 3; Boulton v R; Clements v R; Fitzgerald v R (2014) 46 VR 308; [2014] VSCA 342; R v Obbens [2022] NSWCCA 109, cited.

R v Gary Gow [2006] NSWDC 78; R v Armstrong (Supreme Court (NSW), 25 August 1995, unrep); R v Hall [1999] NSWSC 738; (1999) 108 A Crim R 209; R v ANG [2001] NSWSC 758; R v HA [2008] NSWSC 1368; R v Halloun [2014] NSWSC 1705; R v Eckersley [2021] NSWSC 562, referred to.

5. Even if the sentence imposed was manifestly inadequate, the Crown failed to establish that the residual discretion should not be exercised in the Respondent’s favour, for reasons including that the highly unusual circumstances of the case made it an inapt vehicle either for “laying down principles for the governance and guidance of courts” or ensuring consistency in sentencing: [135]-[151] (Bell CJ); [153] (Payne JA); [154]
   (N Adams J).

Director of Public Prosecutions (DPP) v Sewell [2024] VSCA 70; DPP v Kenneison [2023] VSCA 321, considered.

Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54, referred to.

JUDGMENT

Introduction

1. BELL CJ: This is a Crown appeal from a sentence imposed on Kristian James Samuel White (the Respondent) who was convicted on 27 November 2024 of manslaughter for the unlawful killing of Clare Nowland (Mrs Nowland) on 24 May 2023, contrary to s 18(1)(b) of the Crimes Act 1900 (NSW), following a jury trial of seven days.

2. As Gleeson CJ observed in R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995, unrep):

“It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability.”

The range of sentences available on a conviction for manslaughter has been described as being “greater than for virtually any other crime”: R v Troja (Court of Criminal Appeal (NSW), 16 July 1991, unrep).

3. On 28 March 2025, the Respondent was sentenced by Harrison CJ at CL (the sentencing judge) to a Community Correction Order (CCO) for a period of 2 years pursuant to ss 8(1) and 88(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the CSP Act) with the standard conditions: R v White [2025] NSWSC 243 (SJ or the sentencing judgment). The CCO commenced on 28 March 2025 and will expire on 28 March 2027. An additional condition was imposed on the CCO pursuant to s 89(1) of the CSP Act, requiring the Respondent to perform 425 hours of community service work and submit to supervision by a community corrections officer. Immediately prior to the hearing of the appeal, the Respondent had performed more than a quarter of this work.

4. The circumstances of Mrs Nowland's death some seven days after the application of a taser to her by the Respondent at the Yallambee Lodge aged care facility were recounted in detail in the sentencing judgment and have attracted a great deal of public interest and attention. There was little dispute about the relevant facts as they were electronically before the jury in the form of video recordings taken from body worn cameras. These recordings were carefully reviewed by the Court. The sentencing judge summarised those facts at [6]-[11] of his reasons as follows:

“[6]   Clare Nowland was a resident at the Yallambee Lodge aged care facility in Cooma. At the date of her death she was 95 years of age and suffering from symptoms consistent with some form of cognitive impairment such as dementia. No formal diagnosis of such a condition had been made at the date of her death. Mrs Nowland had mobility issues that were consistent with her age: she required the use of a walking frame to get about.

[7]   On 17 May 2023, Mrs Nowland was observed to be awake and roaming around the care facility. Most of her movements are recorded on CCTV footage from various locations in the facility. At one stage, Mrs Nowland entered the kitchen in a common area and retrieved two small kitchen knives and a jar of prunes. She went on to enter the rooms of a number of other residents while carrying these knives. Attempts by members of staff to take the knives from Mrs Nowland were all unsuccessful and associated attempts to settle her also failed. Shortly after 4am, the Registered Nurse on duty called 000 and requested the assistance of an ambulance. As a result of the fact that Mrs Nowland was in possession of the knives, the 000 operator was required automatically to notify the police as well. No-one at Yallambee Lodge called the police directly.

[8]   As a result of the 000 notification, Acting Sgt Pank and Const White, along with the paramedics, attended the facility and searched for Mrs Nowland. They arrived just before 5am. After a short while, they were notified by staff that Mrs Nowland had been located in the nurses’ office in the administration building. They proceeded to the administration building.

[9]   From 5.07.21am, the entire interaction with Mrs Nowland in the nurses’ office is recorded by the body worn cameras on each of the police officers. It is also recorded on CCTV. Initially, Sgt Pank and Anna Hofner, one of the paramedics, encouraged Mrs Nowland to put down the single knife which by then remained in her hand. Mrs Nowland did not do so. Indeed, Mrs Nowland did not respond either verbally or otherwise to anything said to her throughout her interaction with those present. Instead, Mrs Nowland stood up from a position sitting on her walker and started to push it towards the door leading to the hallway. Sergeant Pank attempted unsuccessfully to disarm her by stepping towards the room, but stopped when Mrs Nowland raised her hand holding the knife. This was at 5.08.47am. Sergeant Pank put her hand out towards Mrs Nowland but again stopped at the doorway when Mrs Nowland raised her hand holding the knife for a second time 10 seconds later. Constable White drew his taser at 5.08.59am. Mrs Nowland continued shuffling slowly towards the door with her walker.

[10]   At 5.09.22am, Mrs Nowland once again raised her hand holding the knife. Constable White then activated the warning arc on his taser at 5.09.31am. A few seconds after that, at 5.09.54am, Mrs Nowland became stationary in the doorway but once again raised her hand holding the knife. Constable White said “Nah, bugger it” and deployed the taser at 5.09.59am, striking Mrs Nowland in the chest and lower abdomen. Mrs Nowland lurched forward before she fell backwards, striking her head heavily on the floor.

[11]   Mrs Nowland was then transported by ambulance to Cooma Base Hospital. Her injuries were later deemed non-survivable. She received palliative care until she died seven days later on 24 May 2023.”

5. On any view, this is a tragic case. It involved, as the sentencing judge said (and without reducing or diluting the significance of what happened to Mrs Nowland), an “error of judgement” and an “egregious” and “terrible” mistake on the Respondent’s part: SJ [34], [40], [84], [85]. It was an error of judgement and mistake with fatal consequences for Mrs Nowland and devastating consequences for her large and loving family, as the many Victim Impact Statements made clear. As his Honour remarked (at SJ [26]):

“The simple but tragic fact would seem to me to be that Mr White completely, and on one available view inexplicably, misread and misunderstood the dynamics of the situation that he faced and patently overestimated both the existence and the level of the threat created by Mrs Nowland in the circumstances.”

6. The characterisation of Mrs Nowland’s death as involving a tragic error of judgement on the part of the Respondent was expressly accepted by the Acting Senior Crown Prosecutor, Mr Hatfield SC, in the following exchange during the sentencing hearing:

“HIS HONOUR: Clearly it was an error of judgement.

HATFIELD: Yes, I agree with that.

HIS HONOUR: A gross error of judgement.

HATFIELD: Yes.”

7. At the sentencing hearing, the Crown eschewed any suggestion that there was any malevolent motivation underpinning the deployment of the taser on Mrs Nowland. Mr Hatfield made plain that “We don't submit that there was any malevolent motivation from the outset. We certainly don't say that”.

8. The sentencing judge was required to make findings of fact and as to the legal basis upon which the jury reached its guilty verdict. This exercise was of critical importance for sentencing purposes as manslaughter is a protean offence: R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1 at [133]; King v R [2015] NSWCCA 99 at [80]. Consideration of the objective gravity of the offending, questions of moral culpability and consistency of sentencing must all be considered in the light of the basis of liability upon which the jury’s verdict rested. Just as its protean character means that there is a wide variety of actions that may constitute the different types or categories of manslaughter, there may also be a variety of circumstances that apply within any one category or type of manslaughter and which influence the instinctive synthesis required of a sentencing judge in undertaking the always challenging process of sentencing an offender.

9. The Crown had taken its case to the jury on two alternative bases: first, manslaughter by unlawful and dangerous act; secondly, manslaughter by criminal negligence.

10. The latter basis included as an element that the Respondent’s act merited criminal punishment for the offence of manslaughter because it fell so far short of the standard of care which a reasonable person would have exercised in the circumstances, and it involved such a high risk that death or really serious bodily harm would follow as a result. Criminal negligence by manslaughter of this kind, as the sentencing judge noted (and instructed the jury), “is often described as gross or even wicked: it is negligence of such a serious kind that it far exceeds simple carelessness or negligence that occurs frequently in our society”: SJ [25]. Indeed, in Evgeniou v The Queen (1964) 37 ALJR 508 at 509; [1965] ALR 209, McTiernan and Menzies JJ described manslaughter by criminal negligence as entailing “recklessness involving grave moral guilt”; see also La Fontaine v R (1976) 136 CLR 62 at 77; [1976] HCA 52.

11. The sentencing judge concluded that the jury reached its verdict on the first of the two alternative bases identified above, namely manslaughter by unlawful and dangerous act, and there is no appeal from the decision in that regard. The Crown accepted that this basis involved a slightly lower level of criminal culpability than manslaughter by criminal negligence: SJ [16]. The sentencing judge rejected the view that the Respondent’s negligence “was either gross or wicked”: SJ [26]. Again, there is no challenge to that finding.

12. The basis of liability identified by the sentencing judge as the predicate of the jury’s guilty verdict, namely manslaughter by unlawful and dangerous act, required the Crown to prove beyond reasonable doubt that:

1. Mrs Nowland’s death was caused by Mr White’s deliberate act;

2. the act was unlawful; and

3. the act was dangerous.

13. This category of manslaughter does not involve an intent to kill or to inflict grievous bodily harm or any notion of recklessness, namely the conscious disregarding of consequences: R v Phillips(1971) 45 ALJR 467 at 478; [1971] ALR 740. Nor does manslaughter by unlawful and dangerous act involve negligence of such a serious kind that it far exceeds simple carelessness or negligence that occurs frequently in our society, so as to amount to gross negligence. Nor, as already noted, was there any suggestion of malevolence.

14. These observations serve to highlight not only why the offence of manslaughter has been described as “protean” but also, and perhaps more importantly for present purposes, what was not involved in the finding of manslaughter by unlawful and dangerous means. Apart from not involving recklessness, this was not a case where the Respondent intended to kill or seriously injure Mrs Nowland. Nor was it a case where the Respondent was found to have acted out of anger or malice, revenge or retribution, envy or jealousy, avarice or greed.

15. It is also important to appreciate at the outset what it was that made the Respondent’s act in deploying the taser as he did “unlawful” and “dangerous” respectively. The Respondent’s act was unlawful because, although the police are authorised to use such force as is reasonably necessary to exercise their functions under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) or any other Act (LEPRA s 230), which includes the use of tasers, and indeed it is part of their duty to use tasers in certain circumstances, the use of the taser in the particular circumstances of the present case constituted unreasonable or disproportionate and therefore unlawful force. This was because, as the sentencing judge held, the situation at the aged care facility could and should “have been handled differently, by the calm and patient application of a common sense understanding that a frail and confused 95 year old woman in fact posed nothing that could reasonably be described as a threat of any substance”: SJ [26].

16. The act was dangerous, in the language of the Crown’s submission to the sentencing judge, because of “the obvious risk that Mrs Nowland might fall, having regard to her age, frailty and restricted mobility and balance”: SJ [19]. The danger to persons upon whom a taser may be applied is treated differentially in police training material that was before the Court, and which it was accepted the Respondent had had the benefit of in his early years in the police force.

17. The use of unreasonable force and the vulnerability of Mrs Nowland as a result of her age and frailty may thus both be seen to be central to what rendered the Respondent’s act unlawful and dangerous. The significance of this observation will be taken up when considering aspects of the Crown’s appeal.

The role of the Court of Criminal Appeal on a sentencing appeal including on a Crown appeal against sentence

18. As with many areas of the criminal law, especially in cases which attract much public interest, the reporting of court outcomes, be it in relation to decisions to grant bail, to exclude or include evidence (including tendency evidence) or in respect of sentencing and appeals, regrettably often fails to comprehend or explain the nature and complexities of the process, the relevant statutory framework, the competing considerations frequently in play and/or the actual evidence underlying the decision in question.

19. Given that this case has excited a deal of public attention, something should be said at this early point of these reasons about the task of, and proper approach to be taken by, this Court in a sentence appeal including where the appeal is brought by the Crown in what is known as a “Crown appeal”. Such an exposition was also undertaken by this Court under the leadership of Gleeson CJ in R v Allpass (1993) 72 A Crim R 561 (Allpass), a Crown appeal in which it was held that, although the sentence imposed was unduly lenient, the appeal should nevertheless be dismissed.

General principles

20. The first point to be appreciated is that there is no single correct sentence for an offender and an offence: Pearce v R (1998) 194 CLR 610; [1998] HCA 57 at [46]; Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 at [24] (Bugmy).

21. The next matter to note is the principle of sentencing, namely that “imprisonment is a punishment of last resort”: Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54 at [14] (Dinsdale). This is reflected in s 5(1) of the CSP Act which provides that “[a] court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.”

22. Thirdly, sentencing involves a process of “instinctive synthesis” by the sentencing judge of a number of different considerations identified in the CSP Act: Markarianv The Queen (2005) 228 CLR 357; [2005] HCA 25. Often incommensurable factors, pulling in different directions, will need to be balanced: Elias v R (2013) 248 CLR 483; [2013] HCA 31 at [27] (Elias). A “two-tier process” whereby the sentencing judge “first determines a sentence by reference to the ‘objective circumstances’ of the case” and then “increases or reduces this this hypothetical sentence … by reference to other factors” is inconsistent with the “instinctive synthesis” approach and erroneous: Markarian at [51]; see also Green (a pseudonym) v R [2025] NSWCCA 16 at [37]-[42].

23. In this context, it is trite but significant that this process of instinctive synthesis entails and “depends upon the exercise of a judicial discretion by the court imposing it”: House v The King (1936) 55 CLR 499 at 504; [1936] HCA 40 (House). The discretion which the law commits to sentencing judges is a wide one (Elias at [27]) and has been described as being “of vital importance in the administration of our system of criminal justice”: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15] (Lowndes).

24. Fourthly, except for rare cases (such as where a trial judge has retired prior to the imposition of sentence), it will be the judge who has presided over the trial that has led to conviction who sentences the offender. By the end of a trial, of whatever length, that judge will necessarily be fully immersed in the circumstances of the offending and invariably the consequences of the offending to the victim or victims. He or she will also invariably deal day in and day out with criminal offending, frequently having practiced in the criminal law for many years before appointment as a judge. Such experience feeds into and informs the complex sentencing process.

25. Fifthly, a court of criminal appeal dealing with any appeal against sentence is not a court hearing the matter anew: Allpass at 562-3; R v Clarke [1996] 2 VR 520 at 522; (1996) 85 A Crim R 114. Unlike civil appeals to the Court of Appeal, the Court of Criminal Appeal does not undertake its work by way of rehearing cf. Supreme Court Act 1970 (NSW), s 75A.

26. Sixthly, the broad, discretionary nature of the sentencing process has ramifications for the scope for appellate review and interference with a sentencing judge’s sentence, and this has long been recognised. It is thus not enough that the judges constituting the Court of Criminal Appeal consider that, had they been in the position of the sentencing judge, they would have imposed a different sentence, whether heavier or lighter: House at 504-5; Lowndes at [15]. So much has been described as “basic”: Lowndes at [15]. Rather, some error in the exercise of the sentencing judge’s discretion must be established before there can be any appellate interference: House at 504-5.

27. Such an error may be patent or latent: Dinsdale at [59]-[60]. There will be a patent error if the sentencing judge:

1. acts upon a wrong principle,

2. allows extraneous or irrelevant matters to guide or affect him or her,

3. mistakes the facts, or

4. does not take into account some material consideration.

28. There will be latent error where the sentence imposed is manifestly inadequate or manifestly excessive such that the Court concludes there must have been some misapplication of principle, even though where and how cannot be discerned from the reasons: Wong v R (2001) 207 CLR 584; [2001] HCA 64 at [58] (Wong); Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59] (Hili).

29. Seventhly, in considering error in the exercise of a sentencing judge’s discretion, the Court of Criminal Appeal will be vigilant against permitting an appeal to be used as an opportunity to recast the case presented to the sentencing judge: BT v R [2012] NSWCCA 128 at [20].

30. Eighthly, a complaint about insufficient or too much weight being attributed to the assessment of the significance or importance of various pieces of evidence or to “the various, conflicting purposes of sentencing” is not available as a ground of appeal in the House sense: Bugmy at [22], [24], [53]; see also MacBlane v R [2025] NSWCCA 52 at [57], citing Ahmad v R [2021] NSWCCA 30 (Ahmad). As this Court observed in Ahmad at [18]:

“It is trite that review of the exercise of the sentencing discretion is confined to the principles in House v R (1936) 55 CLR 499 ; [1936] HCA 40. It is well established that merely claiming that insufficient weight has been given to a factor is not a proper ground of appeal: Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61 at [16]. Criticisms of grounds of appeal formulated in this manner are numerous and longstanding; see for example the authorities in Burrows v R [2017] NSWCCA 45 at [51]–[52]. As was said in R v Sara [2020] NSWCCA 119 at [114], such a ground “subverts the fact that the assessment of the significance or importance of various pieces of evidence is both a matter for the particular sentencing judge to consider as well as something about which informed minds might reasonably differ.”

31. Many grounds of appeal which are sought to be raised in applications for leave to appeal from sentencing judgments as well as in Crown appeals do not use the language of “inadequate weight” or “insufficient weight” or “too much weight” however, when properly understood, that is the gist or essence of the complaint.

32. As will be seen, although grounds 2 and 3 of the Crown’s appeal did not employ such terminology, the nature of those grounds, as the argument unfolded, was in truth to the effect that the sentencing judge had accorded too little weight to certain matters when assessing objective seriousness, and too little weight to the factor of general deterrence in arriving at the sentence imposed on the Respondent. The importance of the decision of the sentencing judge in any case should not be permitted to be undermined by grounds of appeal which in substance, if not necessarily in form, are attacks on matters of weight which go to the very essence of a sentencing judge’s discretion and the instinctive synthesis involved in that process.

Crown appeals

33. Section 5D(1) of the Criminal Appeal Act 1912 (NSW) (CAA) provides for Crown appeals against sentence. It provides that:

“The Attorney-General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence pronounced by the court of trial in any proceedings to which the Crown was a party and the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper.” (emphasis added)

34. For a Crown appeal to succeed, two elements must be satisfied: both error in the sense of House and that the court should not exercise its “residual discretion”.

35. In R v Hernando [2002] NSWCCA 489; (2002) 136 A Crim R 451 at [12] (Hernando), in a passage that was cited by the High Court in CMB v Attorney General for NSW  (2015) 256 CLR 346; [2015] HCA 9 (CMB) at [34] and described at [66] as according with authority and the statutory text, Heydon JA succinctly summarised these “twin hurdles” as follows:

“[I]f this Court is to accede to the Crown’s desire that the respondent be sentenced more heavily, it must surmount two hurdles. The first is to locate an appellable error in the sentencing judge’s discretionary decision. The second is to negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised.”

36. The primary purpose of a Crown appeal under s 5D of the CAA was described in Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49 at [1] (Green) as being “to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons”; see also Griffiths v R (1977) 137 CLR 293 at 310; [1977] HCA 44 (Griffiths); Everett v The Queen (1994) 181 CLR 295 at 300; [1994] HCA 49 (Everett); Lacey v Attorney-General for the State of Queensland (2011) 242 CLR 573; [2011] HCA 10 at [16]. As French CJ, Crennan and Kiefel JJ went on to say in Green at [1]:

“That purpose distinguishes Crown appeals from appeals against severity of sentence by convicted persons, which are concerned with the correction of judicial error in particular cases. The Court of Criminal Appeal of New South Wales, in the exercise of its jurisdiction under s 5D, has a discretion to decline to interfere with a sentence even though the sentence is erroneously lenient. That discretion is sometimes called the ‘residual discretion’”.

37. Another important purpose that may be advanced in a Crown appeal is that of ensuring uniformity of sentencing, so as to maintain public confidence in the administration of justice: R v Amati [2019] NSWCCA 193 at [132]; see also R v AD [2020] NSWCCA 275 at [94]. In an often-cited passage in Everett at 300, McHugh J described the role of Crown appeals in the following way:

“The jurisdiction to hear a Crown appeal against sentence is conferred on a Court of Criminal Appeal so that that Court can ensure that, so far as the subject matter permits, there will be uniformity of sentencing. Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice in any jurisdiction. Sentences that are higher than usual create justifiable grievances in those who receive them. But inadequate sentences also give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public. Inadequate sentences are also likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. To permit the Crown, as well as convicted persons, to appeal against sentences assists in maintaining confidence in the administration of justice.”

38. The principles were well summarized in Manojlovic v R; R v Manojlovic [2020] NSWCCA 315 at [167] (Manojlovic), cited in
    Khorami v R; R v Khorami [2021] NSWCCA 228 at [33] (Khorami):

“The primary purpose of a Crown appeal against sentence is to lay down principles of law for the governance and guidance of courts having the duty of sentencing convicted persons. A Crown sentence appeal based on a claim of manifest inadequacy of sentence requires the Crown to establish that the sentence imposed was unreasonable or plainly unjust in a sentencing environment where there is no single ‘correct’ sentence and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [325]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520 at 538; [2010] HCA 45 at 538 [58].”

39. In Manojlovic at [243], N Adams J expressed the view that it seemed doubtful that “this Court would ever decline to exercise its residual discretion and go on to intervene to increase a sentence in a Crown appeal before first being satisfied that the sentence imposed was manifestly inadequate”. In R v Taylor [2022] NSWCCA 256 at [91], Simpson JA agreed with the approach of N Adams J and observed that “specific error may demonstrate why a manifestly inadequate sentence was imposed; it does not, of itself, establish manifest inadequacy; nor does it, of itself, justify the intervention of this Court to increase the sentence imposed”. Cf. Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54 at [33], [6] (Burton).

40. As was made plain in Green at [1], the “residual discretion” may lead the Court of Criminal Appeal to decline to interfere with a sentence even where the sentence is assessed to be erroneously lenient: Burton; R v Jacobs Group (Australia) Pty Ltd (2022) 108 NSWLR 377; [2022] NSWCCA 152 at [104] (Jacobs Group); Khorami at [34], [485]; CMB at [54]; Bugmy at [24].

41. That may be because the individual case is not one which advances the primary purpose of Crown appeals as identified in cases such as Green and Everett. Thus, it has been said that in circumstances where the guidance provided to sentencing judges will be limited, it may be appropriate for the appeal to be dismissed in the exercise of the residual discretion: HT v R (2019) 269 CLR 403; [2019] HCA 40 at [51]; see also, for example, Khorami at [42].

42. In Griffiths at 310, Barwick CJ said that an appeal against sentence by the Crown should be:

“a rarity, brought only to establish some matter of principle and to provide an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.”

43. In CMB at [35], citing Malvaso v R (1989) 168 CLR 227 at 234; [1989] HCA 58 and Green at [36], French CJ and Gageler J said that Barwick CJ’s statement of principle expresses the “limiting purpose” of an appeal under s 5D and, in so doing, provides “a framework within which to assess the significance of factors relevant to the exercise of the [residual] discretion”: CMB at [35]; see also at [55].

44. Apart from considering whether allowance of a Crown appeal would advance the primary and other purposes underpinning the statutory right of appeal, other relevant factors which have been identified as bearing upon the residual discretion are as follows:

1. any delay by the Crown in lodging the appeal: Hernando at [30]; Green at [43], [131]; R v DKL [2013] NSWCCA 233 at [49] (DKL);

2. any delay in the resolution of the appeal: R v Price [2004] NSWCCA 186 at [60];

3. whether the Crown has conducted the case on a different basis from that pursued at first instance: see R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 at [92]; CMB at [65];

4. whether a non-custodial sentence was imposed on the offender at first instance and its terms have been complied with for a significant period: DPP v Karazisis (2010) 31 VR 634; [2010] VSCA 350 at [107] (Karazisis); R v Y [2002] NSWCCA 191 at [34]; (2002) 36 MVR 328; R v Tortell, R v Tsegay [2007] NSWCCA 313 at [63]; The King v Singar [2025] NTCCA 1 at [68] (Singar);

5. whether the respondent’s release on parole is imminent or has already expired: Green at [43];

6. the effect of re-sentencing on the respondent’s progress towards rehabilitation: Green at [43];

7. whether resentencing would create a disparity with a sentence previously imposed upon a co-offender: Green at [37];

8. whether the respondent’s health has deteriorated since sentence: R v Yang [2002] NSWCCA 464; (2002) 135 A Crim R 237 at [46]; R v Hansel [2004] NSWCCA 436 at [44]; DKL at [49], [53]; R v Reeves [2014] NSWCCA 154; (2014) 243 A Crim R 558 at [17]; Singar at [68];

9. whether an increased sentence would constitute “tinkering” with the sentence: Dinsdale at [64];

10. where the “significant aspect[s] of the case” are unlikely ever to arise again: CMB at [69].

45. It is in the context of the above principles that attention is now turned to the Crown’s grounds of appeal.

Grounds of Appeal

46. The Crown raised the following four grounds of appeal:

“Ground 1: The sentencing judge erred in mistaking the facts by proceeding on the basis that it was agreed between the parties that the Offender held an honest belief that his conduct was necessary.

Ground 2: The sentencing judge erred in his assessment of objective seriousness.

Ground 3: The sentencing judge erred in determining that general deterrence had ‘little or no role’ or ‘only a minor role’ to play in the sentence.

Ground 4: The sentence imposed is manifestly inadequate.”

47. Before addressing the individual grounds, it should be observed that, on the hearing of the appeal, while the Director of Public Prosecutions (the Director) put her submissions forcefully and eloquently, emphasising the frailty and vulnerability of Mrs Nowland, and the disproportionate use of force by the Respondent in the circumstances of the case, the appeal was not in any sense a rehearing or a fresh or “de novo” sentencing hearing. It was an appeal with all the constraints that attach to interference with a sentencing judge’s broad discretion for the well-established reasons which have been set out at length above. Further constraints arising from the fact that the appeal is one brought by the Crown have also been noted.

48. Submissions which may convince an appeal court that the sentence imposed was lenient, for example, will be unavailing unless the court is persuaded that the sentencing judge’s discretion miscarried to such an extent that what the appeal court might consider to be a lenient sentence was “not open” to the sentencing judge and was “plainly unjust”. As Cavanagh J observed in Khorami at [485], the use of the term “lenient” to describe a sentence “does not render it plainly unjust, just as describing a sentence as severe on a manifest excess appeal does not mean that it is plainly unjust”.

49. The second general point that should be made is that the Director’s emphasis on Mrs Nowland’s frailty and vulnerability were what made the application of the taser to her both unlawful (because disproportionate) and dangerous (because of her physical vulnerability): see [15]-[16] above. These matters were inherent in the offending and underwrote the establishment of the Respondent’s guilt and liability. As to the use of the taser and vulnerability of Mrs Nowland, Mr Hatfield volunteered before the sentencing judge that:

“I think there's no real issue between Mr Edwards and I that they are really features of the offending and the reason why the offence is made out.”

Ground 1

50. The first ground of appeal related to his Honour’s observation in the first sentence of SJ [34]:

“In the present case, there seems to be no dispute that Mr White held an honest belief that what he did was necessary to meet the threat that he considered was posed by Mrs Nowland. The jury’s verdict proceeded upon the basis that any such belief was unreasonable. Whatever other descriptor one may wish to attach to Mr White’s decision to fire the taser when he did, it was an error of judgment. In Mr White’s submission, it was an error of judgment made in the performance of his duty as a police officer that was motivated by an honest but mistaken and unreasonable belief about the existence and nature of the threat that was posed. Mr White submitted that it was therefore at ‘the very lowest end’ of objective seriousness.” (emphasis added)

51. The Crown submitted his Honour “erred in mistaking the facts by proceeding on the basis that it was agreed between the parties that the Offender held an honest belief that his conduct was necessary”, given that the Crown “made no concession as to the [R]espondent’s state of mind” and in fact “made comprehensive submissions as to why the sentencing judge should not make such a finding”.

52. The manner in which the first ground of appeal is formulated overstates the degree to which the sentencing judge relied on the Crown’s putative concession in making his finding as to the Respondent’s state of mind at the time of the offence. The opening words in SJ [34] – “there seems to be no dispute” – are expressed somewhat tentatively and fall far short of a finding that there was an agreement “between the parties that the Offender held an honest belief that his conduct was necessary”, to use the language of the first ground of appeal. What his Honour in fact said (“there seems”) was not indicative of any reliance on his part on any consensus between the parties. Even if there were such consensus, whether the Respondent held an honest belief was a matter for the sentencing judge to determine.

53. What the sentencing judge held was that the Respondent made a serious error of judgement. It was uncontroversial that the Crown agreed with this proposition, as the extract from the transcript reproduced at [6] above makes clear. Although the Director on the hearing of the appeal did not concede the point, it is difficult to conceive how an error of judgement, even a gross or egregious one, could be characterised as dishonest. No doubt, that was why the sentencing judge expressed himself as he did, namely that “there seems to be no dispute that Mr White held an honest belief …”.

54. The Crown’s position in the course of the sentencing hearing had been to seek to urge upon the sentencing judge that he should make no finding as to the Respondent’s mental state. Thus, for example, Mr Hatfield submitted that “your Honour wouldn't make a positive finding that he had a particular positive state of mind but there's no need to make any finding that he didn't as an aggravating factor or anything like that.” He made a similar submission in reply.

55. It may be accepted, as the Director emphasised, that the Crown in the course of the sentencing hearing highlighted that the Respondent’s evidence as to his belief that force was necessary was “unconvincing and confused” and that he failed to advert to some relevant considerations including the risk to Mrs Nowland. What Mr Hatfield did not do, however, no doubt consistent with his instructions and ethical obligations, was to submit that the Respondent had acted dishonestly or manifested dishonesty in his conduct directed towards the late Mrs Nowland.

56. To the extent that the sentencing judge made an assessment as to whether the Respondent had acted honestly (albeit unreasonably) or not dishonestly in his actions towards Mrs Nowland (and it is not clear that he in fact did so, his emphasis being on the conduct as involving an error of judgement or mistake), it was certainly not submitted by the Crown that it was irrelevant for him to do so in discharging his obligations as a sentencing judge. It was a matter which was capable of bearing upon an assessment of the objective seriousness of the offence and moral culpability.

57. This takes one to the context of the first sentence of SJ [34] upon which the Crown founds its first ground of appeal. At this point of the sentencing judgment, his Honour was discussing the objective seriousness of the offence. That the Respondent’s honesty was being invoked in the context, and in support, of his submissions on the question of objective seriousness may be seen in the final two sentences of SJ [34], namely;

“In Mr White’s submission, it was an error of judgement made in the performance of his duty as a police officer that was motivated by an honest but mistaken and unreasonable belief about the existence and nature of the threat that was posed. Mr White submitted that it was therefore at ‘the very lowest end’ of objective seriousness.” (emphasis added)

58. What is important to note is that the sentencing judge in fact rejected this submission. So much is plain from his Honour’s conclusion at SJ [37]. Having noted the competing contentions of the parties at SJ [35], namely “that the Crown maintains that Mr White’s offence is not at the lowest end of seriousness and that Mr White contends that it is”, his Honour concluded that “Mr White’s crime falls at the lower end of objective seriousness for crimes of its type”: SJ [37] (emphasis added). Later in his reasons, the sentencing judge recorded what he described as the Crown’s “uncontroversial” acceptance that “the death of Mrs Nowland is not in the worst category of manslaughter”: SJ [87].

59. The challenge to the sentencing judge’s conclusion on objective seriousness is the subject of the second ground of appeal.

60. Contrary to the Crown’s written submission, the first sentence of SJ [34] did not contribute to “the sentencing judge repeatedly describing the offence as an ‘error of judgement’ or a ‘mistake’”. That was a description expressly accepted by the Crown: see [6] above.

61. In circumstances where:

• the Crown was not seeking to make a case that the Respondent had acted dishonestly;

• the Crown expressly agreed that the Respondent made an error of judgement;

• inherent in this concept was the element of honesty;

• the fact or otherwise of the Respondent’s honesty was relevant and a matter for the sentencing judge in considering not only questions of objective seriousness of the offence but in his sentencing discretion more generally;

• the Respondent’s conduct was characterised as involving an error of judgement; and

• this was a conclusion that his Honour reached independently, and not on the basis that the parties had reached an agreement on the matter,

no error was disclosed.

62. Putting the matter slightly differently, even if the sentencing judge erred in saying that “there seems to be no dispute that Mr White held an honest belief that what he did was necessary to meet the threat that he considered was posed by Mrs Nowland”, what was central to the sentencing judge’s conclusion was that this case involved a mistake or error of judgement. This may be seen in the dispositive portion of his Honour’s reasons at SJ [84]-[86].

63. For these reasons, ground 1 of the Crown appeal must be rejected.

Ground 2 – Objective seriousness

64. The Crown’s second ground of appeal was that the sentencing judge erred in his assessment of the objective seriousness of the offence.

65. Before turning to consider this ground, the point should be made that the expression “objective seriousness” is used in the criminal law in a particular sense and context. This was explained with great clarity by the sentencing judge in a passage of his judgment that merits the endorsement of this Court, both for general purposes and, at a more visceral level, for the benefit of Mrs Nowland’s grieving family. His Honour, drawing on almost two decades of experience as a judge conducting criminal trials and hearing criminal appeals, observed: at SJ [35]

“As with so many issues in this case, it is in my view important at this juncture to pause and observe that any discussion about the seriousness, or the objective seriousness, of the offence of which Mr White has been convicted is not, and should not be confused with, a discussion about the seriousness of the death of Mrs Nowland. That would be a mistake. It is beyond controversy that the death of any person is serious. The death of Mrs Nowland is no different. The notion of objective seriousness does not call that fact into question and instead deals with an entirely different concept, being a comparison, if that is possible, between Mr White’s offence and other similar offences. It is in that sense, and only in that sense, that the Crown maintains that Mr White’s offence is not at the lowest end of seriousness and that Mr White contends that it is.”

66. Turning to the ground of appeal, the starting point when considering a challenge to a sentencing judge’s assessment of the objective seriousness of an offence is Spigelman CJ’s statement of principle in Mulato v R [2006] NSWCCA 282 at [37] (Mulato):

“Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour.”

67. In the same case, Simpson J agreed with Spigelman CJ and observed at [46]:

“The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. … The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance.”

See, also, for example, Taitoko v R [2020] NSWCCA 43 at [87].

68. One of the reasons for this need for appellate caution and restraint is because a sentencing judge’s task of assessing the objective seriousness will involve consideration of a range of factors which may be susceptible of significantly differing views: Magro v R [2020] NSWCCA 25 at [29]. It has been said that an appellate court “should be very slow to form its own view” on this issue (R v Sara [2020] NSWCCA 119 at [99] (R v Sara)) and that “latitude is given to a sentencing judge in th[e] task” of evaluating the objective seriousness of the offending: NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1; [2014] FCAFC 38 at [32].

69. Judicial recognition that the assessment of objective seriousness is quintessentially for the sentencing judge has been made in a plethora of decisions following Mulato including Baladjam v R [2018] NSWCCA 304 at [267]; (2018) 341 FLR 162; Lees v R [2019] NSWCCA 65 at [55]; Khorami at [18]; R v Ferguson [2022] NSWCCA 147 at [59].

70. The need for caution and the well-established deference to a sentencing judge’s assessment of the objective seriousness of offending is, if anything, more pronounced when the offence in question is manslaughter because of what has already been referred to as its “protean” nature and the “very wide range of criminality it covers”: R v Holmes (No 7) [2021] NSWSC 570 at [34], referring to Forbes at [133]. Indeed, in the context of manslaughter, which carries no minimum non-parole period, identifying where a particular offence of manslaughter falls on a hypothetical range of manslaughters has been deprecated: Paterson v R [2021] NSWCCA 273 at [33]; Fuller v R [2022] NSWCCA 203 at [82].

71. It is against the background of these principles that attention is turned to the Crown’s contention that the sentencing judge erred in his assessment of objective seriousness.

68. As already noted, his Honour rejected the Respondent’s submission that the offending was at “the very lowest end” of objective seriousness: see [57]-[58] above. In holding that it was “at the lower end” of objective seriousness, the sentencing judge said:

“[38]   First, Mr White was called to the Yallambee Lodge to perform duties in the course of his work as a serving police officer. Mr White and Mrs Nowland were strangers. The incident that caused her death was neither premeditated nor planned, and did not arise in the context of a prior relationship between them, where the possible indices of any such relationship might have had the potential to influence his actions. Mr White had no choice but to attend Yallambee Lodge when so instructed. He did not seek out contact with Mrs Nowland for a nefarious or improper purpose or to secure some advantage for himself. He was in all respects a disinterested contributor to what happened.

[39]    Secondly, Mr White was tasked with a lawful duty to reduce risk and disarm Mrs Nowland whilst ensuring the safety of others who were present. They were brought together in a lawful context pursuant to Mr White’s duty to do so. Once there, Mr White had a duty to resolve the situation that confronted him. He did not have the luxury of being able to exercise a choice about whether or not to remain involved before Mrs Nowland had been disarmed. He was required to resolve the situation to which he had been called and could not have chosen to do nothing.

[40]    Thirdly, the fact that Mr White may have overestimated or misunderstood the nature and extent of the risk posed by Mrs Nowland does not increase the seriousness of the offence. It serves merely to explain its commission. The fact that Mr White’s mistake might be characterised as egregious informs his criminal liability, rather than his moral culpability or its comparative seriousness.”

73. The Crown’s criticism of SJ [38] was highly selective. It focussed on the third last and last sentences of the paragraph and ignored each of the following matters referred to by the sentencing judge in the balance:

• the lack of any prior relationship between the Respondent and Mrs Nowland;

• the lack of any premeditation or planning;

• the absence of any nefarious or improper purpose;

• the absence of any attempt by the Respondent to secure some advantage for himself.

74. These were all matters that supported the sentencing judge’s assessment of objective seriousness and inevitably formed part of the instinctive synthesis that is involved in the sentencing process.

75. The sentencing judge’s statement in SJ [38] that the Respondent was “called to the Yallambee Lodge to perform duties in the course of his work as a serving police officer” and that he “had no choice but to attend Yallambee Lodge when so instructed” pointed to the fact that the offence was not an extraneous frolic on his part but occurred when he was endeavouring to discharge his duty as a police officer. It was not suggested by the Crown that these matters were irrelevant to an assessment of objective seriousness. The rejection of the Crown’s case based on criminal negligence was also relevant and the basis of liability found by the sentencing judge and not challenged by the Crown did not involve recklessness as an element.

76. What the Crown emphasised in this part of its written submissions was that the Respondent had undertaken training in the use of tasers which highlighted the risks of using a taser on various categories of vulnerable people. So much may be accepted, and that fact no doubt contributed to the sentencing judge’s assessment at SJ [27] that “tasering Mrs Nowland was unlawful because it was not and could not have been reasonably necessary to use such force and that the use of such force was dangerous because it exposed Mrs Nowland to the risk of serious injury.”

77. On the other hand, on the subject of training and the use of a taser, the sentencing judge at SJ [22] noted the Respondent’s submission that:

“(1)   There was expert evidence in the trial that the use of a taser is generally an appropriate response to the threat of a knife and that physically disarming an assailant by force is not recommended.

(2)   Mr White attempted to convince Mrs Nowland to surrender the knife and suggested physically disarming her.

(3)   Others present at the scene considered the threat was high.

(4)   Mr White had little training in dealing with an armed elderly person, and little training in the “exceptional circumstances” test required by the Standard Operating Procedures before deploying a taser on such a person.

(5)   Police training encourages containment and negotiation as the principal operating strategy for high risk incidents, with retaining subjects within a perimeter a prime objective.”

78. These matters were all supported by the evidence before his Honour and before this Court on the hearing of the appeal. There is no reason to doubt that these matters contributed to his Honour’s assessment of the objective seriousness of the offending, as reflected in his emphasis at SJ [38]-[39] of the fact that the offending occurred in the course of the Respondent performing his official duty.

79. The Crown’s reliance in its written submissions in this context on the sentencing judge’s observation at SJ [84] that “things could so easily have been handled better” points to the obvious and was clearly a matter taken into account by him as part of the instinctive synthesis.

80. Similarly, when one turns to SJ [39], the fact that the tragedy occurred whilst the Respondent was in the course of performing his duty and involved a serious error of judgement on his part in that context also informed the sentencing judge’s assessment. That may be tested by positing the converse scenario: the use of the taser outside the course of the Respondent’s duty as a result of a deliberate action that involved neither mistake nor error of judgement on his part. An assessment that the objective seriousness of such an offence was at the lower end of a notional range would not have been apposite in those circumstances, but that was not this case.

81. The sentencing judge’s observation at SJ [40] warrants a little elaboration. In some circumstances, inherent characteristics of a particular offence, or characteristics which appertain generally to an element of the offence, may bear upon the degree to which the seriousness of an offence may be aggravated by factors such as vulnerability and very old age: see Elyard v R [2006] NSWCCA 43 at [10]; (2006) 45 MVR 402.

82. In her submissions on objective seriousness, the Director was at pains to emphasise Mrs Nowland’s vulnerability because of her age and frailty and that the Respondent’s conduct involved the use of a weapon (the taser). But to make these points was not to gainsay the correctness of the sentencing judge’s observation at SJ [40], namely that “the fact that Mr White may have overestimated or misunderstood the nature and extent of the risk posed by Mrs Nowland does not increase the seriousness of the offence. It serves merely to explain its commission”. To a very real degree, it was Mrs Nowland’s age and frailty that contributed to what it was that made the use of the taser dangerous and disproportionate, and thus unlawful. The relevant police training material that was before the Court contemplated the use of a taser even against an elderly or disabled person in “exceptional circumstances” but gave little, if any guidance as to what those circumstances might be.

83. On the question of the objective seriousness of the offence, no cogent reason has been advanced for interfering with a matter that was “quintessentially” one for the sentencing judge. Moreover, properly understood, the second ground of appeal was functionally no different to a submission that more weight should have been given to the objective seriousness of the offence in the overall sentencing discretion. It was open to the sentencing judge to hold that the offence was “at the lower end” of objective seriousness.

84. For these reasons, this ground of appeal should be rejected.

Ground 3: General deterrence

85. The Crown’s third ground of appeal was that the sentencing judge erred in determining that general deterrence had “little or no role” or “only a minor role” to play in the sentence.

86. Under the heading “Deterrence – general and specific”, the sentencing judge noted that:

“[56]   Mr White submitted that general deterrence has a limited role to play in the current sentencing exercise. The offending occurred in the very confined scope of being a police officer. The harm caused to Mrs Nowland resulted from an error of judgement.

[57]   The prospect of a police officer in New South Wales intentionally or recklessly causing harm to elderly members of the community in the same or similar circumstances when confronted by an elderly and frail woman in her 90s is so small as to be unlikely to reoccur. If it is accepted that Mr White’s actions and the subject offence resulted from an error of judgement, general deterrence has little or no role to play. Knowledge and awareness of the tragic consequences flowing from the erroneous use of a taser may well deter a reoccurrence of the same behaviour but that is different to the deterrent effect that the sentence to be imposed for such conduct might be expected to create.” (emphasis added)

87. The emphasised words reveal the source of the first part of the Crown’s formulation of the third ground of appeal. In the following paragraph, the sentencing judge concluded that “General deterrence should in my view play only a minor role in assessing the proper sentence to impose”: SJ [58] (emphasis added).

88. Whether or not the words which have been emphasised from SJ [57] represented a statement by the sentencing judge rather than the recording of the Respondent’s submission, following on from [56] (an interpretation that is supported by the phrase “in my view” that appears in SJ [58]), the critical point to note is that in his conclusion, the sentencing judge expressed the view that general deterrence should only play “a minor role” in the sentencing exercise. That was a statement about the weight his Honour was according this consideration in the particular circumstances of this case. The Director accepted in the course of oral argument on the appeal that “some weight was given to” the role of general deterrence by the sentencing judge.

89. Although the Director resisted the proposition that the third ground of appeal was essentially a complaint about weight, the Crown’s attack on this aspect of the sentencing judgment was necessarily to the effect that the sentencing judge should have given more weight to this consideration. So much ultimately emerged in the Director’s final submission on this ground: “[a]n adequate sentence in this case was one that gave significant weight to general deterrence.” That is precisely the kind of argument that this and other appellate courts have deprecated in sentencing appeals: see [30] above.

90. The Director contended that general deterrence was “one of the paramount considerations to be taken into account in sentencing” the Respondent. That submission, expressed at a level of generality, was too broad. Deterrence is one of seven purposes of sentencing identified in s 3A of the CSP Act. Its importance will vary according to both the specific circumstances of the offending and the general nature of the offending. The Director’s submission that “considerations of general deterrence loomed extremely large in this particular matter” reflected at least a significant change in emphasis from the Crown’s position before the sentencing judge. The 10 page written submissions relied upon by the Crown on sentence contained no reference to general deterrence. That fact led to the following exchange on appeal:

“BELL CJ: Very surprising that a very experienced Crown Prosecutor in a case of this profile would not have addressed the matter explicitly in his written submissions to the Court I must say.

DOWLING: I take your Honour’s point.”

91. Indeed, it was the sentencing judge who was constrained to ask Mr Hatfield what his submission on general deterrence was in the course of the sentencing hearing. That his Honour had to do this is not to criticise Mr Hatfield but the extremely limited role general deterrence played in the Crown’s approach before the sentencing judge was telling.

92. General deterrence was described by Spigelman CJ as a matter that “always operates at the margin” in the sense that it will not always be effective as some offenders will continue to offend notwithstanding known penalties: R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 at [205]. General deterrence may also be thought to operate at the margins in a case such as the present which, as the Crown accepted, involved an error of judgement in the context of the discharge of a professional responsibility.

93. General deterrence has an especially important role to play in cases of intentional wrongdoing, especially where the offending represents or reflects a recurrent or pervasive social ill, such as drug and alcohol driven violence (R v Loveridge [2014] NSWCCA 120; (2014) 243 A Crim R 31 at [103]), drug dealing (R v Ha [2004] NSWCCA 386 at [20]; Scott v R [2010] NSWCCA 103 at [27]; Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 at [109], [127]; G v R [2021] NSWCCA 50 at [111]) or the use of or trading in child pornography and child abuse material: see Vincenzo Jon Fedele v R [2015] NSWCCA 286; (2016) 257 A Crim R 78 at [62]; R v Porte [2015] NSWCCA 174; (2015) 252 A Crim R 294 at [72]; Fitzgerald v R [2015] NSWCCA 266 at [33].

94. General deterrence will typically have a lesser role to play in a case such as the present where no pre-meditation was involved. Nor was it logically irrelevant, as the Director submitted, for the sentencing judge to note that the offending involved an error of judgement when considering the question of general deterrence. We do not live in a perfect world and errors of judgement, even ones as tragic and significant as that which occurred in the present case, regularly happen. The need for general deterrence in this context is dimensionally different from those areas of offending referred to in the previous paragraph. Where there is no pre-meditation or where an error of judgement is involved resulting in the commission of a criminal offence, the offender will not be one who might “otherwise be tempted by the prospect that only light punishment will be imposed”: R v Harrison (1997) 93 A Crim R 314 at 321.

95. The class of persons to whom a message of general deterrence would be conveyed by the sentence imposed on the Respondent is police officers armed with and responsible for the use of weapons in their official duties generally and not necessarily confined to the particular circumstances of the present case. His Honour’s reference to the particular circumstances of the case and their unique nature did not lead him inappropriately to exclude general deterrence as a factor forming part of his instinctive synthesis. There can be little doubt that, as a result of the massive amount of publicity generated by the tragedy of Mrs Nowland’s death and the intense media focus on the trial, members of that class are already acutely aware that the Respondent’s error of professional judgement has led to his conviction, loss of his job, all of the associated stigma as well as a not insignificant order for community service.

96. It was not surprising that the Crown made no written submission on general deterrence before the sentencing judge and only relatively exiguous oral submissions when the sentencing judge raised the topic. That approach reflected the relatively minor role to be played by general deterrence in the Respondent’s sentencing.

97. The sentencing judge did not err in his observation that general deterrence had only a minor role to play on the facts of the present case. That was a view that was open to him and, in any event and, as has been pointed out above, the weight his Honour accorded to this consideration was properly a matter for him to determine.

98. Ground 3 should be rejected.

Ground 4: Manifest Inadequacy

99. In Ground 4, the Crown submitted that the sentence imposed was manifestly inadequate and, as such, was unreasonable or plainly unjust.

100. As this Court recently observed in R v Fisher [2024] NSWCCA 191 at [122] (Fisher):

“To establish manifest inadequacy, the Crown must establish that the sentence imposed was unreasonable or plainly unjust in circumstances where there is no single correct sentence, and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach: Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54 at 325 [6]; Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [25]; Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 at 538 [58].”

101. The court will consider the following factors when deciding if the sentence imposed meets that standard of manifest inadequacy: R v Sara at [99]:

“(1)   Sentencing is a discretionary judgment and there is no single correct sentence: Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 at [24].

(2)   The Court of Criminal Appeal must not substitute its own opinion merely because it would have exercised the sentencing discretion differently to the sentencing judge: Lowndes v R (1999) 195 CLR 665; [1999] HCA 29 at [15].

(3)   Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach: Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54 at [6]; Markarian at [25]; Hili at [58].

(4)   The weight to be given to the various factors to be taken into account (including the evidence and various purposes of sentencing) is a matter for the sentencing judge: Bugmy at [24], [99].

(5)   Although the Court of Criminal Appeal is not bound by the sentencing judge’s assessment of objective seriousness, the Court should be very slow to form its own view: CMB at [78]; Mulato v R [2006] NSWCCA 282 at [37].

(6)   Whether or not manifest error has occurred is not “fundamentally intuitive”. What reveals manifest inadequacy is a consideration of all of the matters that are relevant to fixing the sentence: Hili at [60].

(7)   Reviewing a history of sentencing can establish a range of sentences that have in fact been imposed. However, that history does not establish either that (i) that range is the correct range; or (ii) that the upper or lower limits to the range are the correct limits. They are only a yardstick against which to examine a proposed sentence: Hili at [54] approving Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [303]–[304].”

102. To these observations should be added the fact that an appeal based on manifest inadequacy does not require the establishment of any specific or patent error: R v Jackson [2024] NSWCCA 156, citing Dinsdale at [6]. The obverse is, however, not true: it has been held that the Crown must prove manifest inadequacy to succeed in an appeal, even if it is not the only House error relied on: R v Janceski [2005] NSWCCA 288 at [25]; (2005) 44 MVR 328 (Janceski), cited in R v James [2017] NSWCCA 287 at [42]; R v XX [2017] NSWCCA 90; (2017) 266 A Crim R 132 at [8]. This Court held in Janceski at [25], the Crown must demonstrate that:

“the total sentence imposed – even if erroneously reached by the sentencing judge – was manifestly inadequate in the circumstances of this case.”

103. In Manojlovic at [241], N Adams J observed that:

“There is nothing in the judgment of French CJ and Gageler J in CMB at [33] to suggest that in an appeal brought under s 5D of the Criminal Appeal Act, this Court can intervene and impose a higher sentence without first being satisfied that manifest inadequacy was established. Such a proposition would be inconsistent with Everett v The Queen which French CJ and Gageler J expressly endorsed in CMB at [35]. Although it is to be accepted that their Honours stated (at [33]) that before the residual discretion comes to be exercised either latent or patent error must be established, their Honours did not go on to say anything to the effect that an appellate court could, after declining to exercise the residual discretion, increase a sentence that was not manifestly inadequate”.

104. On the authority of Manojlovic, ground 4 must be made out for the appeal to succeed however, to the extent that that decision may not command clear support at intermediate appellate level (see, for example, Burton at [33]), nothing turns on that because of the rejection of grounds 1-3.

105. Before considering the Crown’s arguments on manifest inadequacy, further reference should be made to aspects of the sentencing judge’s reasons leading to the imposition of a CCO.

106. First his Honour summarised six arguments advanced by the Respondent which he must be taken to have accepted:

“[70]   First, Mr White has already suffered extra-curial punishment as a result of his actions. His employment has been terminated. Moreover, as the victim impact statements make perfectly plain, he has become an unwelcome member of the local Cooma community as the result of what he has done. Cooma is the town in which he had made his home with his young family. It will be difficult for him to continue to live there as the negative opinions of him held by Mrs Nowland’s family are unlikely to change.

[71]   Secondly, as a former police officer, the imposition of a custodial sentence, and the associated likely conditions for him in gaol, would be unduly onerous. It is inevitable that any sentence of full-time custody could only be served in some form of protective isolation, a fact that I take to be accepted by the Crown having regard to the evidence provided to me for consideration of the Crown’s detention application last year.

[72]   Thirdly, Mr White does not represent a risk or a danger to the community. Incarceration is not necessary to ensure the safety of a particular individual or group of individuals with whom he is likely to come into contact.

[73]   Fourthly, and in a related sense, Mr White does not pose a risk of re-offending. It is unnecessary as a matter of practical reality that he be retained in custody until Corrective Services NSW has been given an opportunity in a controlled setting to educate Mr White in the eradication of some entrenched or persistent socially inappropriate or dangerous tendencies or proclivities.

[74]   Fifthly, although there will be stridently differing views about it, the imposition of onerous and enforceable community service work conditions requiring the performance of community service work for as many as 500 hours is an appropriate and adequate method of meeting the sentencing conditions of punishment and denunciation for the crime he has committed.

[75]   Sixthly, the law in New South Wales contemplates the imposition of a Community Correction Order, even for offences of manslaughter.”

107. His Honour then noted four cases where the death of the deceased was “tragic, avoidable and serious” but where convictions for manslaughter did not result in a sentence that resulted in the offender’s incarceration. These were R v Gary Gow [2006] NSWDC 78 (Gow); R v Armstrong (Supreme Court (NSW), 25 August 1995, unrep); R v Hall [1999] NSWSC 738; (1999) 108 A Crim R 209 (non-custodial sentence); R v ANG [2001] NSWSC 758 (two year suspended sentence); and R v HA [2008] NSWSC 1368 (wholly suspended sentence of two years imprisonment, released on a good behaviour bond which included conditions of counselling and cooperation with regard to medical attention for children).

108. His Honour made particular reference to Gow in which a doctor was convicted of manslaughter by criminal negligence following the over-prescription and mis-prescription of morphine tartrate as a result of pressure from his patient. His Honour observed at [77]:

“Dr Gow was also found to have made a series of other serious mistakes which led to his patient being supplied with the potentially fatal doses of morphine tartrate without any written instructions as to the quantity he should use. Despite the egregious nature of his negligence, he was sentenced to an 18-month suspended sentence. Unlike the present case, and as a matter of distinction, Gow involved a series of five errors made over a substantial period of time rather than a single decision made under the pressure of a perceived threat.”

Dr Gow was given a suspended 18 month sentence on condition that he be of good behaviour and appear before the Court if called on to do so during the term of his bond.

109. Gow and the other cases referred to by the sentencing judge were not advanced as “comparative sentencing” cases, and the Crown did not suggest on appeal that there were any directly comparable cases, a matter which renders an assessment as to whether the sentence was manifestly inadequate more difficult, albeit not impossible.

110. In the pre-sentencing detention application, the sentencing judge described the case as “unlike any other that I have had to confront”: R v White [2024] NSWSC 1527 at [16] (pre-sentencing detention judgment or PSDJ). His Honour was drawing on his 50 years as a lawyer and almost 20 years as a judge. He continued:

“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 judgement 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.”

111. The sentencing judge’s ultimate conclusion (at SJ [87]) was that:

“As the Crown uncontroversially accepts, the death of Mrs Nowland is not in the worst category of manslaughter. In my judgment, which I am able dispassionately to form having regard to the objective facts, it is on the contrary at the lower end of seriousness of crimes amounting to wrongful death. It does not call in my judgment for a custodial sentence in order to give effect to the objects of sentencing described earlier in these reasons. Moreover, a custodial sentence would in my view be disproportionate to the objective seriousness of the offence and Mr White’s particular subjective circumstances.”

112. The particular, subjective circumstances referred to were those summarised at SJ [70]-[71], reproduced at [106] above, as well as his Honour’s earlier acceptance that the Respondent had expressed remorse and regret: SJ [48].

113. Moreover, as his Honour had also earlier said, the Respondent “did not intend to kill or seriously injure Mrs Nowland, 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”: PSDJ at [17].

114. The Crown relied on the arguments advanced in grounds 1-3 of its appeal in supporting its submission that the sentence imposed was manifestly inadequate. Thus, in its written submissions, for example, the Crown repeated the contention that the offence was not at the lower end of the range of objective seriousness. For the reasons already given, each of those grounds must be rejected.

115. The Crown raised the following additional matters as supporting its argument that the sentence was manifestly inadequate. These were that:

1. the sentencing judge failed to address the Crown’s application under s 30E(3) of the CSP Act;

2. the case analogies referred to by the sentencing judge were not apt comparisons to the present case; and

3. the sentencing statistics for manslaughter annexed to the submissions in Annexures A and B were said to “confirm that non-custodial sentences for manslaughter have only been previously imposed in truly exceptional cases”.

116. The second of these points has already been dealt with. The sentencing judge did not posit the cases he referred to as comparative sentences of a kind that may be referred to for the purpose of ensuring consistency in sentencing: Hili at [49]; The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 at [28] (Pham). Rather, his Honour was simply seeking to illustrate that there were other exceptional cases where convictions for manslaughter had not resulted in an offender in fact being sent to prison, those being cases where short sentences had been suspended (a power no longer available to this Court).

117. This aspect of the Crown’s submission does not support the characterisation of the sentence imposed in the present case as one that was manifestly inadequate. Nor does the Crown’s third submission, noted at [115] above. The sentencing judge was well aware that this was an exceptional case and said so in terms: see, for example, in the passage quoted at [110] above.

118. In relation to the Crown’s submission that the sentencing judge failed to address the Crown’s application under s 30E(3) of the CSP Act, a little more should be said. That section provides that:

“A victim impact statement of a family victim may also be taken into account by a court in connection with the determination of the punishment for the offence on the basis that the harmful impact of a primary victim’s death on family victims is an aspect of harm done to the community, but only if—

(a)   the prosecutor applies for this to occur, and

(b)   the court considers it to be appropriate.”

119. The Crown’s application made during the sentencing hearing was as follows:

“HATFIELD: Those are the victim impact statements your Honour. Your Honour is asked to take those into account as an aspect of the harm done to the community under section 33 [sic 30(3)] of the Crimes (Sentencing Procedure) Act.”

120. This application had been foreshadowed in the Crown’s written submissions on sentence in which reference was made to R v Halloun [2014] NSWSC 1705 at [46]. The only submission (written or oral) made in support of this application was as follows:

“The Victim Impact Statements of the victim's family members give vivid expression to the extent of the loss that has been caused by the senseless homicide of their elderly mother in such circumstances and that she died in a violent undignified manner, compounded by intense public interest in the case because of the extraordinary nature of the Offender's act.”

121. At SJ [59], the sentencing judge referred to the victim impact statements. His Honour indicated that he had taken “special note of the universal sentiments of grief and anger to which they refer at some length”. He referred to the statements again at SJ [85]. The “universal sentiments of grief and anger” referred to in the Victim Impact Statements extended beyond the grief and anger felt by members of Mrs Nowland’s family. For example, one statement referred to feelings of grief and insecurity which “would also be shared by the elderly community in Australia now and many others which has clearly led to the significant media attention”. Another referred to a “failure of the systems that are supposed to protect the most vulnerable amongst us”. Another referred to the “broad-reaching concern” for what happened to Mrs Nowland.

122. Reference was also made earlier in the judgment to the fact that “[t]he community places great store in the fact that an officer will only use force in the course of his or her lawful duty that is both reasonably necessary and proportionate in the circumstances” (SJ [18]) and to “a community expectation that violence will not be occasioned to” vulnerable and elderly people: SJ [36]. Furthermore, the sentencing judge’s appreciation of the broader interests of the community in the circumstances surrounding Mrs Nowland’s death and the sentencing of the Respondent were manifest in his observation (at SJ [13]) that:

“complete strangers to the proceedings, such as members of the general population and the local community, and often in large numbers, although only affected indirectly, nevertheless remain vicariously invested in the due administration of the criminal justice system.”

123. His Honour also referred to the purposes of sentencing identified in s 3A of the CSP Act including the purpose “to recognise the harm done to the victim of the crime and the community” and observed that “[i]t goes without saying that I am required to take these matters into account”: SJ [62]. There is no doubt that he did so: see SJ [80]. His Honour expressly referred to the “the objects of sentencing described earlier in these reasons” as part of his dispositive reasoning: at SJ [87]. Earlier, at SJ [63], the sentencing judge recorded the Crown’s submission that “the objective seriousness of the offending requires a sentence that recognises the taking of Mrs Nowland’s life and the effect of the crime on her family and the wider community.”  At SJ [81], his Honour also referred to community expectations in positing an analogy.

124. There is no merit, in my view, in the Crown’s contention that the sentencing judge failed to address the Crown’s application under s 30E(3) of the CSP Act in relation to the taking account of community expectations albeit that he did not make express reference to the section. How and the extent to which his Honour addressed it was a matter for him but there is no doubt that the sentencing judge was fully cognisant of the profound impact of Mrs Nowland’s death on members of her family as well as of the community, and the interest and impact her death had occasioned not only amongst the family but in the community more generally. His Honour’s judgment endeavoured to explain, with utmost sensitivity and clarity, the complex task he was undertaking and the competing considerations with which he was obliged to grapple: see, for example, the passage from the sentencing judgment extracted at [65] above; see also SJ [13]-[15].

125. The Crown also submitted that the Respondent’s loss of employment and the views expressed by members of the Nowland family in their Victim Impact Statements about the Respondent’s continuing presence in the Cooma community after his conviction should have carried no weight. I disagree. These were relevant matters to be taken into account by the sentencing judge and what weight his Honour accorded them was properly a matter for his discretion.

126. As to the impact on the Respondent’s continuing employment, the authorities were recently reviewed in this Court by Sweeney J in Wanstall v R [2024] NSWCCA 167 at [30]-[49]. While the availability of this matter as a relevant subjective consideration may vary according to the nature of the particular offence, where that offence was based upon a mistake or error of judgement, no policy consideration militates against the relevance of this matter being taken into account.

127. As to the impact on the Respondent’s continuing ability to remain with his family in the Cooma community, it was open to his Honour to allude to (understandable) statements of hostility directed to the Respondent and his continuing presence in Cooma in a number of the Victim Impact Statements to provide a basis for the views expressed in SJ [70], reproduced at [106] above.

128. The sentencing judge could not sentence the Respondent to imprisonment unless satisfied that, having considered all possible alternatives, no penalty other than imprisonment was appropriate. This proscription is imposed by s 5(1) of the CSP Act. His Honour reached the conclusion that, on the facts of the present case, there was a penalty other than imprisonment that was appropriate for the Respondent. In R v Eckersley [2021] NSWSC 562 at [87]-[89], Beech-Jones J referred to other such exceptional cases of manslaughter which fell under the threshold specified in s 5(1) in addition to those that were referred to by the sentencing judge in the present case.

129. At first blush, the sentence imposed on the Respondent may be considered to be lenient but, as these reasons have been at pains to point out, the fact that an appellate court may consider a sentence to be lenient does not render it manifestly inadequate or plainly unjust. In Burton at [37], Basten JA observed that “[i]t may be said, as the sentencing judge expressly recognised, that the sentence was exceptionally lenient, but it was also merciful. The personal circumstances of the offender, which were fully explored in the sentencing judgment, warranted a significant degree of leniency, based in part on compassion.” In the present case, the sentencing judge also had regard to the Respondent’s particular subjective circumstances as well as his remorse and regret. His Honour noted the Crown’s acceptance of the Respondent’s positive subjective case: SJ [63].

130. The Director submitted, correctly, that denunciation is an important purpose of sentencing, referring to s 3A(f) of the CSP Act. The Director also submitted that the sentence awarded did not give effect to this purpose. In considering the adequacy of a sentence, however, one should never underestimate the fact that the recording of a conviction is a “formal and solemn act marking the court’s, and society’s disapproval of a defendant’s wrongdoing”: R v McInerney (1986) 42 SASR 111 at 124; (1986) 28 A Crim R 318. Moreover, as Gleeson CJ said in R v Ingrassia (1997) 41 NSWLR 447 at 449; (1997) 91 A Crim R 383, in a passage quoted with approval by Spigelman CJ in Thorneloe v Filipowski (2001) 52 NSWLR 60; [2001] NSWCCA 213 at [153], [155]:

“The legal and social consequences of being convicted of an offence often extend beyond any penalty imposed by a court.”

This observation was also quoted with approval in R v Mauger [2012] NSWCCA 51 at [40].

131. The very fact of conviction forms part, and serves as a public and official record, of the community’s denunciation of the commission of the offence: R v ZB [2021] QCA 9; (2021) 287 A Crim R 519 at [6], quoted in R v AB [2022] NSWCCA 3 at [42]. That very real stigma is one that will remain with the Respondent forever and is likely to impact on all aspects of his life.

132. There is also the fact that a heavy burden of community service has been imposed on the Respondent. Community corrections orders are a form of punishment and restriction on liberty. Such orders have been described as “a sentencing disposition which enables all of the purposes of punishment to be served simultaneously, in a coherent and balanced way, in preference to an option (imprisonment) which is skewed towards retribution and deterrence”: Boulton v R; Clements v R; Fitzgerald v R (2014) 46 VR 308; [2014] VSCA 342 at [113]-[115], referred to by Hamill and Dhanji JJ in R v Obbens [2022] NSWCCA 109 at [25].

133. Plainly enough, there will be many cases where a CCO is not an appropriate form of punishment and no penalty other than imprisonment is appropriate. His Honour did not consider that the present was such a case. That conclusion was, in my view, open to him and is not one in respect of which this Court would be justified in interfering even though accepting that it fell on the lenient side of the spectrum. A sentencing judge’s discretion is broad, and the fact that an appellate court may have reached a different outcome is not to the point in the event that the sentence imposed was within the broad margin of appreciation afforded sentencing judges.

134. Given this conclusion, there is strictly no need to consider the residual discretion. Out of deference to the extensive submissions made on this topic, however, I propose to do so for completeness.

Residual discretion

135. The principles relevant to the operation of the residual discretion have been set out in some detail at [33]-[44] above.

136. The Crown contended that the residual discretion should not be exercised in circumstances where the Crown did not delay in instituting the appeal and did not contribute to the asserted errors made by the sentencing judge. Further, the Crown submitted that a resentence is justified in circumstances where the resolution of the case is of “considerable significance in providing guidance to sentencing judges” and “ensuring considerations of general deterrence are accounted for”.

135. The Respondent submitted that the discretion should be exercised and relied on evidence as to the Respondent’s deteriorating state of mental health and his performance of a substantial portion of the sentence imposed on him.

136. Even had I been satisfied that the sentence imposed by the sentencing judge was not open to him in the exercise of his wide sentencing discretion (which I am not), this is not a case where the Crown has overcome the second hurdle identified in Hernando, that is to say, the Crown has not established to my satisfaction that the residual discretion should not be exercised in the Respondent’s favour. This is for a number of reasons.

137. First, the highly unusual (though undoubtedly tragic) circumstances of the present case mean that it is not an apt vehicle to give effect to what was stated in Green to be the primary purpose of Crown appeals, namely to “lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.”  That this is so is reflected in the formulation of the grounds of appeal which do not raise any issues of general significance or importance but are closely tailored to the particular manner in which the sentencing judge exercised his discretion on the facts of the particular case.

138. Second, and relatedly, the highly unusual nature of the present case and the inability of either side to point to comparable cases for sentencing purposes means that allowing the Crown appeal in this case would not advance the important justification for such appeals identified by McHugh J in Everett at 300, namely consistency in sentencing: see also Wong at [8]. It is not possible, as Gleeson CJ observed in Blacklidge, to point to any established tariff which can be applied to manslaughter cases generally (see [2] above) and there was certainly no suggestion in the present case of the existence of inconsistent sentencing in similar cases. Indeed, it was common cause that no similar cases could be identified.

139. Consistency in sentencing is essentially concerned with the concept that like cases are treated alike, and different cases differently (Wong at [6], Hili at [49]; Pham at [28]) or, expressed more fully, that “similar offenders who commit similar offences in similar circumstances would be expected to receive similar sentencing outcomes”: see S Krasnostein and A Frieberg “Pursuing consistency in an individualistic sentencing framework: if you know where you’re going, how do you know when you’ve got there?” (2013) 76 Law and Contemporary Problems 265 at 270.

140. The purpose of consistency will not be advanced by an exercise of the residual discretion in favour of the Crown in the present case.

141. Third, a number of the considerations identified in [44] above militate powerfully against the exercise of the residual discretion in favour of the upholding of the Crown’s appeal in the present case. The most powerful of these is the Respondent’s deteriorating health since he was sentenced and in the period leading to this appeal.

142. In Karazisis at [108], Ashley, Redlich and Weinberg JJA said that, where there has been a significant deterioration in the respondent’s health, or mental well-being, in the period between his/her having been sentenced and the hearing of the appeal, particularly “in a case not involving criminality of the highest order, the court may take the view that it would be unfair and inappropriate to intervene merely to mark the court’s disapproval of the sentence originally imposed”.

143. Affidavit evidence was received in the appeal which indicated that the Respondent was admitted as an involuntary patient at Cooma Hospital on 2 April 2025, and was transferred to the Mental Health Unit of Goulburn Base Hospital on 3 April 2025 for a period of 5 nights until his discharge on 8 April 2025. Annexed to the Affidavit was both a copy of the Respondent’s “Admission Summary” from Cooma Hospital and his “Discharge Paperwork” from Goulburn Base Hospital. Upon discharge the Respondent was prescribed with Diazepam, Escitalopram, Melatonin, Perindopril-amLodipine, Prazosin, and Propranolol.

144. Evidence was also led on the appeal in the form of a psychological assessment report prepared by Dr Jenna Bollinger on 18 June 2025 as to a very serious decline in the Respondent’s mental health in the period since his sentence. Dr Bollinger had prepared an earlier report pre-sentence on 5 February 2025. In that earlier report, Dr Bollinger stated:

“Mr White has expressed ongoing suicidal ideation and urges to self-harm. If he were to receive a custodial sentence, he would require ongoing support and management of any suicidal indicators. Concerns would be held for his safety under such circumstances.”

147. In her later (unchallenged) evidence, Dr Bollinger said:

“68.   Mr White explained that from the date of his sentencing, he experienced greater intensity of depression symptoms. He stated that he ‘wasn’t going well’ and felt ‘like I was floundering’. He found himself ruminating on negative events and experienced intrusive thoughts and flashbacks to traumatic events associated with his work in the police force. While discussing his mental health difficulties at that time, he began to cry. He reported using distraction techniques to manage the trauma memories but it ‘wasn’t working well’, leading to intense thoughts of suicide. He stated that he contemplated methods and a plan including overdosing on his medication, jumping in front of a truck and hanging. He reported experiencing overwhelming thoughts of suicide leading him to contact Lifeline which ‘distracted me from doing it for an hour’. He noted that he did not act on the suicidal thoughts because ‘I didn’t want my family to find me like that. How would my daughter handle it? How would my partner handle it?’.

69.   He then spoke with his partner about the suicidal thoughts she they presented to the emergency department, leading to an overnight stay at Cooma Hospital before being transferred to Goulburn Hospital where he remained as an involuntary patient for five days. While in the hospital, he was prescribed escitalopram and prazosin which he is continuing to take. Upon his discharge, he had a follow up with community mental health and he has been referred to an occupational therapist (OT), Ms McWhirter whom he has seen for three visits at this time. He noted that they have recently begun doing Eye Movement Desensitisation and Reprocessing (EMDR) and he is continuing to attend weekly appointments.

…

81.   On the DASS, his results indicate severe levels of depression, extremely severe levels of anxiety and moderate levels of stress.

…

86.   Mr White’s mental health appears to have declined quite significantly since February 2025, his physical appearance has deteriorated and his mood and mental state appear to be less stable than they previously have been. The diagnoses made previously continue to stand, however the severity appears to have increased. Mr White’s ongoing commitment to community service, therapy and his medication should assist with managing his symptoms and mood.”

148. It should be noted that the significant deterioration of the Respondent’s health following the sentencing coincided with the publicity surrounding the matter and the sentencing process itself. At the time that he was hospitalised he was not yet aware that the Crown intended to lodge an appeal against his sentence.

149. This is also a case in which a non-custodial sentence was imposed on the Respondent and he has already undertaken a not insubstantial part of the sentence imposed. Evidence was received that, as at 24 June 2025, the Respondent had complied with his CCO and completed 120 hours and 25 minutes of the 425 community service hours ordered, with positive feedback from his allocated agency regarding his participation.

150. This was an important factor in the Victorian Court of Appeal’s refusal to exercise the residual discretion in the Crown’s favour in Director of Public Prosecutions (DPP) v Sewell [2024] VSCA 70 at [117] where Mr Hersant had completed all 200 hours of the CCO imposed on him (within a period of time shorter than the duration of the CCO); see also DPP v Kenneison [2023] VSCA 321 at [58].

151. So, too, it is in the present case.

Conclusion

152. For all the above reasons, I would dismiss the appeal.

153. PAYNE JA: I agree with the Chief Justice.

154. N ADAMS J: I agree with the Chief Justice.

Amendments

30 July 2025 - Revision made to [22], first sentence, "... Criminal Appeal Act 1912 (NSW) (CAA): ..." has been deleted and replaced with "... CSP Act: ..."

Revision made to [33], "Section 5D(1) of the CAA ..." has been replaced with "Section 5D(1) of the Criminal Appeal Act 1912 (NSW) (CAA) ..."

Decision last updated: 30 July 2025