By Sarah McPhee
Prosecutors have argued a jail sentence was “realistically inevitable” for the police officer found guilty of manslaughter after Tasering 95-year-old Clare Nowland, while the judge said the case was unlike anything he had dealt with in 18 years.
Justice Ian Harrison will decide on Friday whether Senior Constable Kristian James Samuel White will be taken into custody ahead of sentencing. The 34-year-old was found guilty by a NSW Supreme Court jury on Wednesday and prosecutors applied for him to be detained.
Senior Constable Kristian White arrives at the NSW Supreme Court on Thursday.Credit: Kate Geraghty
White Tasered Nowland, who had dementia, as she stood holding her walker and a knife inside Cooma’s Yallambee Lodge nursing home on May 17, 2023. He said, “Nah, bugger it”, before discharging his weapon, which caused Nowland to fall and hit her head. She died in hospital a week later.
As the Crown’s detention application was heard in Sydney on Thursday, Harrison, who was sworn in as a NSW Supreme Court judge in 2007, said the case was “different to any I’ve had to deal with in the past 18 years”.
“Most cases that come to me in the criminal sphere involve the commission of offences that are associated with some form of intent, and that intent is nearly always coupled with one or other of emotions such as greed or punishment or revenge or passion, or any number of pejorative influences that infect and affect the commission of the offence,” Harrison said.
“In this case, and speaking intentionally neutrally, this offence was committed in the context of a failure to advert, on one view, to the realities of what were presented.”
Clare Nowland died in hospital a week after being Tasered.
Under NSW bail laws, an offender found guilty of a crime who will be sentenced to full-time imprisonment must have their bail revoked ahead of sentencing, unless they can establish special or exceptional circumstances to remain at liberty.
Harrison said the court had to consider the likelihood of a custodial sentence being imposed before submissions were made at a future sentence hearing, which would ordinarily be supported by other material including expert opinions.
Crown prosecutor Brett Hatfield, SC, submitted that it was “not realistic that there’s going to be any alternative” to a jail sentence, and that “clearly, the jury has found, on any view, that the force [used by White] was not reasonably necessary”.
“A full-time custodial sentence is one which is … realistically inevitable,” Hatfield said.
Manslaughter in NSW carries a maximum penalty of 25 years in jail.
The Crown alleged White committed manslaughter by criminal negligence or an unlawful and dangerous act. The defence argued White was acting within his duty as a sworn police officer.
White’s barrister Troy Edwards, SC, said it was open for the judge to find the offence was on the “lowest end” of the “scale of seriousness of offences of manslaughter”, and that “the criteria for the discharge of the Taser was met, but for the exceptional circumstances test”.
Edwards pointed to the case of Barbara Eckersley as an example that a sentence of full-time imprisonment was “not a certainty” as a consequence of the charge alone. Eckersley was found guilty of the manslaughter of her 92-year-old mother after mixing drugs into her soup, but avoided jail.
The judge said he was considering “difficult” and “weighty matters” and adjourned his decision until 10am on Friday.
White (centre) will find out on Friday whether he will be detained ahead of sentencing.Credit: Kate Geraghty
Harrison acknowledged White, his family and others had an interest in the outcome, but he did not “propose to rush judgment on this issue”. Several members of Nowland’s family attended court.
The court heard February 7 was being considered for White’s sentence hearing. The prosecutor said they “may need time” as he was unsure how many victim impact statements would be read.
Earlier on Thursday, NSW Police confirmed White was no longer being paid after his employment status was reviewed following the verdict.
White had been suspended from duty with pay for the past 18 months. In the hours after the verdict, NSW Police Commissioner Karen Webb said White’s employment status was under review.
“There has to be documents served and process followed, and we’ll just let that happen,” Webb said.
In a statement, NSW Police said: “Following the verdict in the Supreme Court, a 34-year-old officer attached to Monaro Police District was notified on Wednesday he has been suspended from the NSW Police Force without pay.”
“Regarding the officer’s position in the NSW Police Force, the NSW Police commissioner is following the procedure mandated under the Police Act 1990, [section] 181D,” the statement said.
Section 181D covers the commissioner’s power to remove an officer from the force after the loss of confidence in their competence, integrity, performance or conduct. Webb said she expects to consider that next week.
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