The family of an aged-care resident killed by a police officer are struggling to come to terms with him being spared jail a second time.
An appeals court ruled on Wednesday the decision to not imprison the former officer rightly took into account hostility against him.
Then-senior constable Kristian James Samuel White, 35, fired his Taser at 95-year-old Clare Nowland after being called to Yallambee Lodge nursing home at Cooma in southern NSW on May 17, 2023.
In March, he was given a two-year good behaviour bond and ordered to complete community service after a NSW Supreme Court jury found him guilty of manslaughter.
His sentence was upheld after three judges from the NSW Court of Appeal dismissed a legal challenge by prosecutors seeking a jail term.
“The sentence imposed, albeit lenient, was not manifestly inadequate,” a summary of the decision by Chief Justice Andrew Bell and Justices Anthony Payne and Natalie Adams read on Wednesday.
“Conviction of the offence of manslaughter did not, in the exceptional circumstances of this case, mandate a custodial sentence.”
The Nowland family said they were grateful for the work of prosecutors and respected the court’s decision. But they were still struggling to come to terms with the outcome.
“A former police officer who was convicted of using deadly force on Clare, a vulnerable and defenceless 95-year old lady, while in her own home, can walk free without having spent a single day in jail,” they said.
Nowland’s loved-ones were looking ahead to a coronial inquest, when wider issues would be considered, their solicitor Sam Tierney said.
During the brief two-minute and 40-second encounter at Yallambee Lodge, the then-officer drew his stun gun and pointed it at Nowland for a minute before saying “nah, bugger it” and discharging the weapon at her chest.
The 48-kilogram great-grandmother, who had symptoms of dementia, fell and hit her head.
She did not regain consciousness and died in hospital a week later after a brain bleed.
Harrison took into account the impact of Nowland’s death on her family and the community when determining his sentence, Bell wrote.
But the sentencing judge also rightly considered White had lost his job with the NSW Police Force and was unwelcome in the small town of Cooma where he lived, the chief judge noted.
The 35-year-old has been diagnosed with severe depression and anxiety and has admitted to thoughts of self-harm since he was sentenced.
The appeals court upheld Harrison’s finding White’s actions were at the “lower end of seriousness” compared to other manslaughter cases.
Bell rejected criticisms of the sentence judge’s ruling that general deterrence – stopping other police officers from the same actions – played only a minor role in deciding what penalty to impose.
This was especially so for cases such as White’s where there was no pre-meditation, the chief judge said.
“We do not live in a perfect world and errors of judgment, even ones as tragic and significant as that which occurred in the present case, regularly happen,” Bell wrote.
White said nothing as he left court, but stared straight ahead as he walked with his partner.
He is fighting the loss of his job with NSW Police.
A conciliation conference will be held in the NSW Industrial Relations Commission on August 12.
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-AAP
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