Kristian White did not give Clare Nowland ‘real chance to avoid being Tasered', prosecutors argue

The Guardian

2 days ago

An ex-police officer who 'rushed' to deploy his Taser against a 95-year-old woman during an encounter at a nursing home in Cooma should be sentenced to jail time after a 'manifestly inadequate' non-custodial sentence was imposed on him earlier this year, a court has heard.
Kristian James Samuel White, while a New South Wales police constable, fired his Taser at Clare Nowland two minutes and 40 seconds after being called to the Yallambee Lodge nursing home.
She died in hospital a week after the incident in the early hours of 17 May 2023.
White, 35, was found guilty of manslaughter by a jury last year and handed a two-year good behaviour bond and ordered to complete community service in March.
At the NSW court of criminal appeal in Sydney on Friday, crown prosecutors appealed against the sentence, with the director of public prosecutions, Sally Dowling SC, arguing that supreme court justice Ian Harrison made a number of errors when he decided not to send White to prison.
'The truly senseless, impatient, violent conduct of the respondent that resulted in the death of this very vulnerable victim requires a sentence that gives weight to the principle of denunciation,' she said.
Dowling argued that the short period from White arriving at the scene to deploying his Taser, Nowland's obvious vulnerability and mobility issues and non-responsiveness to requests 'and of course, the respondent's comment of 'Nah, bugger it', made immediately before he tasered Mrs Nowland is, we say, clearly, evidence of his impatience with her'.
'This evidence goes to the objective seriousness of the offending,' she said. 'It illustrates how extremely vulnerable Mrs Nowland was, and it also illustrates the respondent did not give her any real chance to avoid being Tasered.
'There were many other options available to him.'
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Harrison had concluded that jailing White would be disproportionate to the seriousness of the offending, arguing that while the police officer had made a 'terrible mistake', his crime was less serious than other manslaughter offences.
Dowling pointed to sentencing statistics in NSW, which showed that since sentencing reforms in 2018 allowed a community corrections order to be given as a penalty for manslaughter, only two sentences have involved a non-custodial sentence.
'In the crown submission, this is not such an exceptional case, and anything other than a custodial sentence was not capable of meeting the multiple purposes of sentencing,' Dowling said. The multiple purposes, she said, were adequate punishment for the offence, accountability and denunciation, and recognition of harm done to the community.
In his judgment, Harrison decided the need to deter other police officers from committing similar offences played 'only a minor role' in his sentencing decision.
But Dowling argued the issue of deterrence should have been more strongly considered in sentencing.
White's barrister, Troy Edwards SC, said the issue of general deterrence should not be a principal concern in this case.
'Does general deterrence really follow in those circumstances? A police officer in the position of the accused, placed in a position of confrontation, who assesses a situation ultimately erroneously … will they be deterred by a stern sentence being imposed on Mr White? In my submission that simply can't work,' he said.
Edwards told the court that White had already completed a 'significant proportion' of the community service hours he had been ordered to undertake as per the original sentence and that, significantly, he had been so affected by the trial and publicity that he had been 'an involuntary patient in a psychiatric institution as a consequence'.
White had also experienced panic attacks within the last two days, while shopping at Aldi, his lawyer said. 'His worries and PTSD anxiety has worsened since the indexed offence because of fears of being stared at and spoken about,' he said.
Edwards said that when considering the relevant seriousness of White's offending, his role as a police officer and duty to resolve the situation with Nowland needed to be considered.
'He was thrust into a confrontational situation that he was duty-bound to resolve. That is, he hadn't chosen to be there,' he said. 'There's no planning for him to commit this offence. It occurred within a short space of time in circumstances where he had a sworn duty to resolve the situation.'
The barrister argued that the crown submissions that the judge had not adequately considered Nowland's extreme vulnerability due to her age and infirmity in the sentence was 'just not correct'.
'The age and vulnerability of the victim were undoubtedly part of the reason for the determination of guilt that is criminal liability in the first place,' he said. 'The jury … determined that the level of force was unreasonable, and they did so largely on the basis of the age and infirmity of the deceased.'
The justices have adjourned to consider their decision.