Supreme Court New South Wales Medium Neutral Citation: R v White [2024] NSWSC 1527 Hearing dates: 28 November 2024 Date of orders: 29 November 2024 Decision date: 29 November 2024 Jurisdiction: Common Law - Criminal Before: Harrison CJ at CL Decision: (1) Refuse the Crown's detention application. (2) Continue bail on conditions as varied by consent. (3) Stand over the proceedings for sentencing submissions on 7 February 2025. Catchwords: DETENTION APPLICATION – Bail Act 2013 s 22B – limitation regarding bail during period following conviction and before sentencing – policeman found guilty of manslaughter by jury for causing death of elderly woman tasered in a nursing home – whether satisfactory evidence of suitable safeguards in place concerning incarceration of serving policeman – whether special or exceptional circumstances exist – whether the offence is one for which the offender will be sentenced to imprisonment to be served by full-time detention Legislation Cited: Bail Act 2013, ss 17, 22B Cases Cited: Director of Public Prosecutions (NSW) v Van Gestel (2022) 109 NSWLR 136; [2022] NSWCCA 171 Category: Principal judgment Parties: Rex (Crown) Kristian James Samuel White (Offender) Representation: Counsel: B Hatfield SC with V Garrity (Crown) T Edwards SC with T Lowe (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Anderson Boemi Lawyers (Offender) File Number(s): 2023/166133 Publication restriction: Nil JUDGMENT 1. HIS HONOUR: Kristian White was found guilty by a jury following trial of the manslaughter of Clare Nowland on 24 May 2023. Ms Nowland was at the time of the incident that led to her death a resident in the Yallambee Lodge aged care facility in Cooma, New South Wales. She was then 95 years of age, physically frail and required a mobile walker to assist with her ambulation. Ms Nowland was also apparently suffering from the signs of undiagnosed dementia. 2. During the course of the early morning of 17 May 2023, between the hours of approximately 2am and 4am, Ms Nowland was detected moving about in the nursing home, including the corridors of the administration building and the kitchen of one of the residential houses. Ms Nowland is also known to have entered the rooms of some other of the residents. Ms Nowland was at these times in possession of a steak knife which she held or carried in her right hand. 3. Ms Nowland eventually ended up seated on a chair in the nurses' room in the administration building. She still had the knife. However, before Ms Nowland arrived in that location, staff at the nursing home had called for an ambulance to assist them to deal with the situation with which they were confronted. In due course the police also attended, including Mr White. In circumstances to which it is presently unnecessary to record in detail, Ms Nowland was struck by a taser fired at her by Mr White as she walked slowly from the nurses' room wielding the knife. Ms Nowland became immediately incapacitated by the taser and collapsed backwards to the floor where she struck her head. She died some days later from injuries that she sustained in that fall. 4. Upon the return of the verdict, the Crown applied for a detention order pursuant to s 22B of the Bail Act 2013. Mr White is currently, and has been since he was charged with the unlawful killing of Ms Nowland, at liberty in the community on conditional bail. Despite the imposition of those conditions, none would appear to be framed to ameliorate any genuine bail concern within the meaning of, or identified by, s 17(2) of the Bail Act. Mr White has in any event complied with these conditions to date. 5. Section 22B of the Bail Act provides relevantly as follows: 22B Limitation regarding bail during period following conviction and before sentencing for certain offences (1) During the period following conviction and before sentencing for an offence for which the accused person will be sentenced to imprisonment to be served by full-time detention, a court-- (a) on a release application made by the accused person--must not grant bail or dispense with bail, unless it is established that special or exceptional circumstances exist that justify the decision, or (b) on a detention application made in relation to the accused person--must refuse bail, unless it is established that special or exceptional circumstances exist that justify a decision to grant bail or dispense with bail. (2) If the offence is a show cause offence, the requirement that the accused person establish that special or exceptional circumstances exist that justify a decision to grant bail or dispense with bail applies instead of the requirement that the accused person show cause why the accused person's detention is not justified. (3) Subject to subsection (1), Division 2 applies to a bail decision made by a court under this section. (4) This section applies despite anything to the contrary in this Act. 1. Without elaborating upon the details of the Crown's submissions, it is sufficient to note at this stage that the Crown maintains that Mr White is a person who will be sentenced to imprisonment to be served by full-time detention and that he has not established that special or exceptional circumstances exist that would justify a decision to grant bail. Mr White maintains that the imposition of a sentence of imprisonment to be served by full-time custody is not inevitable but says in any event that I could not be satisfied that adequate and realistic details of the anticipated custodial conditions to which he is likely to be exposed between now and when he is sentenced, having regard to his occupation as a sworn member of the New South Wales Police Service, have yet emerged. I acknowledge in that last respect my concern that there is a need in the present case for Mr White's particular circumstances properly and reliably to be assessed, having regard to what is known about the risk of victimisation of, and gratuitous violence directed to, convicted police officers by other inmates in so-called correctional facilities. The existence of that risk is not controversial. Special or exceptional circumstances 1. On the question of Mr White's anticipated custodial conditions, the Crown tendered the statement of Detective Sergeant Mitchell Bosworth dated 28 November 2024, which was read without objection. The following extracts from that statement should be noted: "6. If Kristian White were remanded in custody, the CSNSW Special Operations Group would attend the Supreme Court and escort the prisoner by himself to the MRRC. 7. The prisoner would [be] classified as 'protection non association', meaning he will not be in the physical presence of other inmates at any time. 8. Protective custody is explained in the CSNSW, Custodial Operations Policy and Procedures document. … 9. A submission will be made to Leon Taylor, the Acting Commissioner, CSNSW as a matter of priority for placement within Long Bay Hospital Area 3, Long Bay Complex, as is customary for former and current New South Wales Police staff. CSNSW expect this process would be completed within a week. His movement would be facilitated shortly thereafter by specialist CSNSW staff. 10. Depending on the prisoner's non-association levels, he may be able to associate with other inmates in the Area 3 complex who are also in similar circumstances. 11. The process for his induction into custody would not change whether he was refused bail or upon being sentenced. 12. The above-mentioned protocols have been successfully employed with other inmates with similar characteristics who are currently on remand, serving sentences or have served sentences." 1. Detective Sergeant Bosworth's statement also attached a letter from Jeremy Tucker, Director - Parliamentary and Executive Services, dated 27 November 2024 in the following terms: "Corrective Services NSW (CSNSW) understands that information has been sought via the NSW Police Force on matters relating to the expected entry into lawful custody of Mr Kristian James Samuel White, pending a decision of the Supreme Court. CSNSW can advise that on entry into CSNSW custody, Mr White will be escorted to the Metropolitan Remand and Reception Centre (MRRC). Mr White will be subject to standard screening and reception processes. As part of this process Mr White will be assessed for risks to his safety and to identify any special needs. Due to his occupation as a serving police officer, CSNSW considers that Mr White will require special management while in custody. I can advise that Mr White will be placed in protective custody. A submission will be prepared for the consideration of the Acting Commissioner of CSNSW for the longer term placement of Mr White in the Special Purpose Centre at the Long Bay Correctional Complex. This is a maximum security facility for inmates that require special ongoing protection. Pending approval by the Acting Commissioner, Mr White will be transferred from the MRRC to the Special Purpose Centre. The preparation and approval process will be expedited and is expected to take approximately one week to finalise." 1. No submissions were made on behalf of Mr White to suggest that the arrangements referred to and described by Detective Sergeant Bosworth and Jeremy Tucker would not be adequate or sufficient to ensure his protection if or when he were taken into custody. Subject to one matter, I am satisfied that these arrangements are satisfactory and that Mr White cannot establish the existence of special or exceptional circumstances that would, standing alone, justify a decision to grant bail. Nor are Mr White's personal family and domestic circumstances, as deposed to by his partner Hannah Birkinhead in her affidavit affirmed 27 November 2024, sufficient to establish the existence of special or exceptional circumstances. 2. The one matter to which I wish to draw attention is Mr Tucker's reference to the preparation and approval process taking approximately one week to finalise. In the event that Mr White were ultimately taken onto custody, I would want to be satisfied that the process referred to had in fact been finalised before that occurred. Is Mr White a person who will be sentenced to imprisonment to be served by full-time detention? 1. The answer to this question calls for an examination and application of the terms of s 22B of the Bail Act. The structure of that section and its construction were considered in Director of Public Prosecutions (NSW) v Van Gestel (2022) 109 NSWLR 136; [2022] NSWCCA 171 at [13]-[19]: "The structure of s 22B [13] Statutory powers or limitations on powers are often qualified by preconditions. Section 22B is such a provision. The opening words of s 22B(1) set out conditions of engagement of the limitation on the power of the Court to make a bail decision with respect to a convicted person on a release application made by a convicted person or a detention application made by the prosecution. [14] The provision contains two conditions: (a) the accused person the subject of the release application or detention application has been convicted of an offence (which includes a plea of guilty), and (b) the offence is one for which the person 'will be sentenced to imprisonment to be served by fulltime detention' (emphasis added). It is convenient to use the shorthand expression 'full-time imprisonment' for the statutory language in s 22B(1). [15] The first condition involves a question of fact. It is unlikely to be controversial, but if in dispute, it is a matter to be determined on the balance of probabilities: Bail Act, s 32(1). [16] The second condition requires the Court as the bail authority to make an evaluative judgment as to a future matter, being the disposition of the sentence with respect to the convicted person. That involves the Court making a forward-looking assessment on the limited materials placed before the Court on the release or detention application. Those materials are unlikely to contain all the materials which will be relied upon by the parties on sentence. [17] Despite the absence of specific reference in the opening words of s 22B(1) to the opinion or satisfaction of the Court, as opposed to the fact, it is implicit in the nature of this condition that it requires the Court to form an opinion or reach a state of satisfaction as to whether the convicted person 'will' be sentenced to full time imprisonment. As this is an evaluative judgment of a future matter and not a fact to be proved, proof on the balance of probabilities is not the relevant standard. The difficult issue concerning the degree of satisfaction to be reached by the Court before the power to make a bail decision is limited under s 22B, is best deferred until after the analysis of the structure of s 22B is completed. [18] If the conditions in s 22B(1) are satisfied, the provision directs the outcome of the application, being the Court 'must' not grant bail or dispense with bail on a release application made by a convicted person, and the Court 'must' refuse bail on a detention application made by the prosecution, subject in each case to the exception expressly provided for, being that 'special or exceptional circumstances' exist that justify 'the decision'. [19] Relevantly, on a detention application made by the prosecution, the concluding words in s 22B(1)(b) referring to the 'the decision', should be taken in context as referring to the 'contrary' decision, namely the decision to grant bail or dispense with bail." 1. The Crown referred me to the second reading speech in the legislative assembly on 21 June 2022 concerning what was then the Bail Amendment Bill 2022. The Court in Van Gestel was also referred to this speech, reproduced in the judgment at [41] as follows: "… Bail is not intended to be a pre-judgment of someone's guilt or punishment before conviction. However, that does not mean that criminals who have been convicted or plead guilty and who the court is confident will be sentenced to imprisonment by full-time detention, should be permitted to walk free in our community while they are waiting to be sentenced. The presumption of innocence does not apply after a conviction or guilty plea. Currently, when an accused person is found guilty of an offence and the matter is adjourned for sentencing to a later date, a bail decision maker must, under s 18(1)(i1) of the Bail Act, already have regard to 'the likelihood of a custodial sentence being imposed'. The provision will go one step further to provide that serious offenders who will be sentenced to imprisonment to be served by full-time detention must not be granted bail post-conviction prior to sentencing. Offenders will not be taken into remand under the provision in circumstances where they will later be sentenced to a lesser penalty and released, or, for example, be considered for an intensive corrections order or an order under s 11 of the Crimes (Sentencing Procedure) Act 1999 because by very definition those are not circumstances where the offender 'will be sentenced' to full-time detention. This is not intended to be a pseudo or abridged sentencing hearing. A full sentencing hearing will still occur before a judge, as per the usual processes, at a later date determined by the court, with the usual opportunities for parties to make submissions. The defence will still have the opportunity to put forward evidence and arguments about what the precise sentence should be. However, this reform will ensure that offenders who will be receiving full-time detention are not granted bail to be released back into the community in the interim before that sentencing hearing can occur. This is not about increasing the number of people going to prison. It is about offenders who have already been found guilty beyond a reasonable doubt or pled [sic, pleaded] guilty and are heading to prison getting there quicker and not being out in the community while awaiting sentence …" 1. It is also helpful and informative to have regard to what the Court in Van Gestel said at [42]-[45]: "[42] Some limited assistance can be obtained from the Second Reading Speech. The reference to the Court being 'confident' of the future disposition of the sentence with respect to the convicted person supports the view that s 22B sets a high bar for the degree of satisfaction to be reached by the Court to engage the power to make a bail decision under s 22B. That is consistent with the approach that legislation that affects personal liberty will be given strict construction: State of New South Wales v Kaiser [2022] NSWCA 86 at [57(6)] (Simpson AJA, Bell CJ and Beech-Jones JA agreeing). It is also consistent with the acknowledgment in the Second Reading Speech that the nature of the application under s 22B is not a pseudo or abridged sentence hearing. It is important however not to fall into the error of construing the words of the statute by reference to the language used in the extrinsic materials. [43] Accepting that the word 'will' is to be read as emphasising the degree of satisfaction to be reached by the Court before the limitation under s 22B on the Court's power to make a bail decision operates, does not provide an immediate answer to its intended meaning. Some assistance as to the intended meaning of 'will' is provided by its context, relevantly: the Court as the bail authority is not the sentencing court, the Court will not necessarily be apprised of all of the evidence at trial, the Court will not have all of the materials that are to be relied upon by the parties on sentence, and that the task of the Court required by s 22B is not to conduct a pseudo or abridged sentencing hearing. [44] When regard is had to these contextual considerations, the use of the word 'will' in the condition indicating future likelihood suggests what is realistically inevitable as distinct from what may happen or is likely to happen. That does not mean that 'will' involves a state of absolute certainty. That cannot be correct since the task of the Court as a bail authority is to make a forward looking assessment of the future disposition of the sentence with respect to the convicted person based on materials which are unlikely to be complete. [45] In making that assessment, the Court will have regard to: (1) the offence(s) for which the accused person has been convicted, bearing in mind the principles of sentencing and all applicable sentencing laws, specifically the Sentencing Procedure Act, including the available sentencing alternatives to full time imprisonment; (2) the materials and submissions placed before the Court as the bail authority relevant to the future disposition of the sentence with respect to the convicted person; and (3) the abbreviated nature of the release or detention application before the Court, especially, that the application is not a pseudo or abridged sentencing hearing." [Emphasis added] 1. Implicit in these remarks is a recognition of the fact that, in most cases, the court sitting as the bail authority will not also be the court that sentences the offender. This is not, for obvious reasons, such a case. I am presently being asked by the Crown to revoke Mr White's bail in circumstances where the test of whether he "will" be sentenced to full-time imprisonment aligns with a decision that in due course will have to be made by me. I am in the circumstances of this case speaking only for myself, but there is to my mind a considerable tension between a statutory requirement that I should make an assessment in the present circumstances based on imperfect material when it is not possible to predict what outcome might follow at a sentencing hearing inevitably to be based on, and with the significant advantage of, considerably different material. I am also particularly troubled that a decision either to continue Mr White's bail or to revoke it carries in each case at least the possible appearance of prejudgment when I finally come to decide what sentence to impose. 2. Moreover, given the notoriously protean nature of manslaughter offences, and the extraordinary range of possibilities between 25 years imprisonment and a non-custodial sentence, I am not prepared to say in what I consider to be an acceptably judicial way that it is realistically inevitable that Mr White will be sentenced to imprisonment to be served by full-time detention. 3. There is an additional and significant reason for that. This case is unlike any other that I have had to confront. 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 judgment 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. 4. For example, Mr White did not intend to kill or seriously injure Ms Nowland. Mr White 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. The fact that the jury's verdict represents a conclusion that Mr White's actions should be punished as a crime does not alone foreclose upon the ultimate sentencing outcome. 5. In passing these remarks I should not want to give unwarranted hope to Mr White that he will avoid a sentence of full-time imprisonment or to cause distress or frustration to those whose reasonably available and strongly held view is that nothing less than such a result would be appropriate. I am simply not comfortable making, and I am not prepared at this stage to make, a decision as a bail authority with respect to Mr White based on a conclusion that he "will be sentenced to imprisonment to be served by full-time detention" when that decision can at present only rest on materials that are not only unlikely to be complete, but are certain to be incomplete. 6. In these circumstances I make the following orders: 1. I refuse the Crown's detention application. 2. I continue Mr White's bail until further order on condition that he is of good behaviour, does not travel overseas and does not approach or communicate in any way with any member of the family of Clare Nowland. 3. I adjourn the proceedings for sentencing submissions before me on 7 February 2025. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 November 2024