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[2025] NSWDC 447
General information, not legal advice.
District Court of NSW
2025-08-08
Turnbull SC DCJ
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: R v NATHAN BLACK; R v TIMOTHY JOHN TRAUTSCH [2025] NSWDC 447
Hearing dates: 10 July 2025, 15 July 2025, 16 July 2025.
Date of orders: 08 August 2025
Decision date: 08 August 2025
Jurisdiction: Criminal
Before: Turnbull SC DCJ
Decision: See [176] and [177].
Catchwords: CRIME — Violent offences — Common assault — Unauthorised use of a Prohibited Weapon — intentionally communicate protected information — Body-Worn Video — Vulnerable Victim — Authorized use of Force — Unlawful Acts
SENTENCING — Aggravating factors — Gratuitous cruelty — Denunciation — Position of Trust or Authority — Police Offenders
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Law Enforcement (Powers and Responsibilities) Act 2002
Mental Health Act 2007
Surveillance Devices Act 2007
Weapons Prohibition Act 1998
Cases Cited: Betts v R [2015] NSWCCA 39
Clarkson v R [2007] NSWCCA 70
Clinton v R [2009] NSWCCA 276
Lloyd v R [2022] NSWCCA 18
McCullough v R [2009] NSWCCA 94
Melvaine v R [2019] NSWCCA 274
R v Durocher-Yvon [2003] NSWCCA 299
R v LP [2010] NSWCCA 154
R v Sampson [2025] NSWCCA 25
R v White [2025] NSWCCA 111
Regina v Elfar [2003] NSWCCA 358
Ryan Gurney v Regina; Aaron Willetts v Regina [2011] NSWCCA 48
Ryan v The Queen [2001] HCA 21
Suleman v R [2009] NSWCCA 70
Waterfall v R [2019] NSWCCA 281
Category: Sentence
Parties: Nathan Black (Defendant)
Timothy John Trautsch (Defendant)
The Crown (Prosecution)
Representation: Counsel:
C Micali (Nathan Black and Timothy John Trautsch)
N Marney (Crown)
Solicitors:
P R James (Nathan Black and Timothy John Trautsch)
Office of the Director of Public Prosecutions (NSW) (Crown)
File Number(s): 2023/00088074 (Nathan Black)
2023/00088071 (Timothy John Trautsch)
Publication restriction: Nil
The offenders Nathan Black and Timothy John Trautsch were committed for Trial on 5 July 2024. On 6 September 2024, the matter was listed for Trial to commence at Penrith Courthouse on 12 May 2025, and the trial length estimate was one of three weeks. On 14 March 2025, both offenders indicated to the Court that they intended to plead guilty, and guilty pleas were formally entered by both offenders on 21 March 2025. As the guilty pleas were entered 59 days prior to the commencement of the trial, these offenders are entitled to, pursuant to s 25D(2)(b) of the Crimes (Sentencing Procedure) Ac**t 1999, a reduction of 10% from any custodial sentence that would otherwise have been imposed. That is for purely utilitarian purposes. I afford them that discount.
Both offenders pled guilty to the following offences: one count of Common Assault pursuant to s 61 of the Crimes Act 1900, that offence carries with it a maximum penalty of two years’ imprisonment. It is a matter, I note, that would commonly be dealt with in the Local Court. A further single count of unauthorised use of a prohibited weapon, being OC spray, pursuant to s 7(1) of the Weapons Prohibition Act 1998. The maximum penalty for that offence is one of 14 years’ imprisonment. There is a standard non-parole period attaching to it of five years.
Nathan Black has also pleaded guilty to two further counts of intentionally communicating protected information pursuant to s 40(1) of the Surveillance Devices Act 2007, and that carries with it a maximum penalty of two years’ imprisonment. It is a further matter that could also have been dealt with by the Local Court.
I take the maximum penalties into account as Parliament’s confirmation of the community’s view as to the seriousness of the offences. They, and the standard non-parole period where it arises, are guideposts in my sentencing task.
The offences occurred on 22 January 2023, and the offenders were arrested on 16 March 2023. They have not been subject to bail, and they have served no pre-sentence custody.
The facts upon which they seek to be sentenced are reduced to a statement of agreed facts. In addition to that, a number of exhibits were relied upon. The exhibits which were of most significance were three videos, two from a body-worn video and the third being CCTV from a proximate business.
I have previously dealt with some applications from the media and there have been further ongoing matters. The Crown Solicitor has been proactive and measured in ensuring open Justice is achieved and I am very grateful for their assistance The conclusion I came to is that I have ordered the release of the CCTV camera video properly pixelated in order to allow the community to see events from that angle. In terms of the body-worn video, that is particularly distressing. It involves very debasing and offensive images and distressing audio.
That will be a matter for further consideration should it be sought, but at this stage, the excerpt photos and the video, provided with the relevant pixelation, from the CCTV, will accompany my reasons for judgment.
The victim, and I will use that term here, was one Jodi Knott. She was born on 6 March 1974. On 22 January 2023, she was 48 years and ten months old. Ms Knott suffered from schizophrenia and was therefore considered a vulnerable person. Medical records obtained during the investigation indicated that the victim lived by herself and was in receipt of disability support payments. She was not currently working at the time of the incident, and she was not in any domestic relationship.
She has since passed away in no way related to anything that arose physically from these crimes. The patient health record obtained from New South Wales Health notes that the victim had previously been prescribed Seroquel, however self-ceased for a period of time leading up to the incident. There were no documented mental health admissions in the Nepean Local Health District.
The offender, Nathan Black, was born on 30 October 1996, and so at the time, he was 26 years and two months old. He was attested as a New South Wales Police Probationary Constable on 28 April 2017 and completed his probationary period and became a Constable on 28 April 2018, and on 28 April 2022, he had been promoted to the rank of Senior Constable. After completing his training at the New South Wales Police Academy, the offender Black was posted to the Nepean Police Area Command where he undertook general police duties and duties as a proactive crime team member.
As of 22 January 2023, the offender Black’s training in relation to weapons and the use of force was up to date, and he was authorised to carry a firearm, taser and OC spray, which he was authorised to use whilst acting in the ordinary course of his duties.
The offender, Timothy John Trautsch, was born on 4 April 1995. On 22 January 2023, he was 27 years and nine months old. The offender Trautsch was attested as a New South Wales Police Probationary Constable on 27 April 2018, and he completed his probationary period and became a constable on 27 April 2019.
After completing his training at the New South Wales Police Academy, the offender Trautsch was posted to the Nepean Police Area Command where he undertook general police duties and duties as a proactive crime team member. As of 22 January 2023, the offender Trautsch’s training in relation to weapons and the use of force was up to date, and he was authorised to carry a firearm, a taser and OC spray, which he was authorised to use while acting in the ordinary course of his duties.
I conclude therefore that he and the offender Black were relatively experienced police officers at the time of this incident.
“Informant state there is a female naked in the puddle bathing herself on the side of the road, described as blonde and Caucasian – heading towards train station apparently.”
This information was broadcast via the police radio system with a request that a police unit attend the location. Smith Street is a cul-de-sac in an industrial area of Emu Plains. The location where the offenders saw Ms Knott is approximately a five minute walk from the Amber Laurel Correctional Centre, which is located on Old Bathurst Road in Emu Plains, and it is from where Ms Knott had been released earlier that day.
On the afternoon of 22 January 2023, the offender Black and the offender Trautsch were on duty and were operating within the Nepean PAC. They were doing so in plain clothes. They were doing so in an unmarked car. They were using radio call sign Nepean 142, and the offender Black was in possession of a police issued body-worn video recorder.
At 4:58pm, Nepean 142 acknowledged the police broadcast regarding the report and began to make their way to Smith Street in that unmarked police vehicle. At 5:03pm, they informed police radio operator that they were on scene. Six minutes later, the offender Black sent a radio broadcast saying:
“We are outside number 9 Smith Street, Emu Plains. Can we get an ambulance, please, for a 50 year old female, conscious and breathing, for a mental health assessment”
At 5:13pm, the police radio operator informed Nepean 143 that the ambulance was two minutes away from the location, and a New South Wales Health ambulance arrived on the street at 5:14pm. I conclude that that is in fact what occurred.
At 5:51pm, Nepean 143 reported that they were on their way to Nepean Hospital. Between their arrival on scene and when they left the scene at 5:51pm. Neither offender requested that additional police resources be sent to the location. Other police resources were available.
Shortly after arriving, the offenders concluded that it was necessary to exercise powers under the Mental Health Act 2007, and there was not an intention to arrest Ms Knott for any criminal offence. It is clear that aside from being naked, there was no criminal offence evidently available.
Section 15 of the Mental Health Act 2007 states that a person is mentally disordered if their behaviour, for the time being, is so irrational as to justify a conclusion, on reasonable grounds, that temporary care, treatment or control of the person is necessary for their protection from serious physical injury or for the protection of others from serious harm.
Section 22 of the Mental Health Act 2007 provides that:
22 Detention after apprehension by police
(1) A police officer who, in any place, finds a person who appears to be mentally ill or mentally disturbed may apprehend the person and take the person to a declared mental health facility if the officer believes on reasonable grounds that—
(a) the person is committing or has recently committed an offence or that the person has recently attempted to kill himself or herself or that it is probable that the person will attempt to kill himself or herself or any other person or attempt to cause serious physical harm to himself or herself or any other person, and
(b) it would be beneficial to the person’s welfare to be dealt with in accordance with this Act, rather than otherwise in accordance with law.
Pursuant to s 81 of that Act, a police officer may use reasonable force in exercising any function under the Mental Health Act 2007. Section 230 of the Law Enforcement (Powers and Responsibilities) Act 2002 makes similar provisions for the use of reasonable force when exercising a statutory power.
Pursuant to s 418 of the Crimes Act 1900, a person is not guilty of a criminal offence for acts carried out in self-defence. A person is only acting in self-defence if they believe that the conduct was necessary to defend themselves or another person. In order to be acting in self-defence, a person’s response must be a reasonable one in the circumstances as they perceive them to be.
In relation to the offences of common assault, the offender Black and the offender Trautsch accept, by their pleas of guilty, that the conduct they engaged in, in relation to Ms Knott was not reasonably necessary in order to carry out a function under the Mental Health Act 2007 nor was it a reasonable response to the threat that they perceived from Ms Knott.
In relation to the offences under s 7 of the Weapons Prohibition Act 1998, the offenders Black and Trautsch accept, by their pleas of guilty, that their use of OC spray, which is a prohibited weapon, did not amount to a reasonable use of force and was therefore used otherwise than in accordance with the ordinary course of their duties as a police officer. OC spray was also used in contravention of police procedure. Police officers are trained that using OC spray at a range shorter than ninety centimetres is to be avoided, because of the potential for eye injuries. OC spray is also not to be used solely for the purpose of inflicting pain on the subject.
A CCTV camera located on Smith Street, Emu Plains, captured video footage of the offenders’ conduct. It was marked as Crown exhibit C3 on sentence. The timestamp on the Crown exhibit starts at 17:29:30 and finishes at 17:41:47. There is also a single body-worn video camera that was worn by the offender Black that recorded part of the offenders’ conduct. It was marked as Crown exhibits C1 and C2 on sentence. Recording C1 starts at 17:10:32 and concludes at 17:19:02 when it is turned off. Recording C2 commences at 17:19:30 when it is turned back on and concludes at 17:27:05.
The body-worn video footage contains a timestamp which is correct. The CCTV recording contains a timestamp which is approximately 14 minutes and six seconds fast. During the course of the incident, the offender Black at times turned off the audio recording function of his body-worn video or turned off the video completely.
Prior to activating his body-worn video camera, the offender Black recorded a 17-second video clip on his mobile phone of Ms Knott while she was sitting naked by the roadway. The Court has not been made aware of the contents of that video clip.
The offender Black can be distinguished by the fact that he is the taller of the two offenders and is the person wearing the body-worn video. The offender Trautsch can be distinguished by the fact that he is wearing Vans shoes and is the shorter of the two offenders.
These are the unlawful acts carried out by each accused as set out in the agreed facts, but as I say, or if I have not, I emphasise that the videos in many respects speak for themselves. The effect of that is that as exhibits to which I must have and have had close regard aspects of the offending not reduced to writing in the Agreed Facts become apparent. Additionally various matters, for example the availability of other resources not called upon, were addressed from the Bar table without demurrer.
During the incident, both accused were in company with each other and were acting together when they engaged in a course of conduct whereby Ms Knott was unlawfully assaulted. The excerpts in the agreed facts, though, are only a summary of the unlawful acts committed by the offenders which are fully recorded in the Crown exhibits C1, C2 and C3.
Exhibit C3, 17:23.30: the offender Trautsch sprays OC spray into Ms Knott’s face while she is sitting cross-legged on the floor. OC spray is sprayed onto Ms Knott’s vagina.
Exhibit C3, 17:26.19: one of the offenders strikes Ms Knott causing her to fall backwards onto the roadway.
Exhibit C1, 17:38.18: the offender Black drags Ms Knott along the roadway by her hair. Both offenders repeatedly kick and stomp on Ms Knott while she is on the ground.
Exhibit C1, 17:38.57: the offender Black kicks out with the sole of his foot which makes contact with the side of Ms Knott’s face. At around this time, the offender Trautsch said to the offender Black, “That’s enough. There could be cameras.”
Exhibit C1, 17:39.08: the offender Trautsch sprays Ms Knott with OC spray, whilst the canister is very close to her face.
Exhibit C1, 17:39.27: the offender Black sprays OC spray into Ms Knott’s face.
Exhibit C1, 17:39.33: the offender Black sprays OC spray onto Ms Knott’s back which has visible injuries. I find that they are grazes and abrasions consistent with the falling and being dragged on the roadway.
Exhibit C1, 17:40.10: the offender Black kicks out using the sole of his foot towards Ms Knott’s back.
Exhibit C1, 17:40.23: both offenders direct multiple kicks towards Ms Knott’s body and head.
Ms Knott was transported to Nepean Hospital by officers from the New South Wales Ambulance Service. During the journey to hospital, Ms Knott complained of severe pain to her vagina as a result of the use of OC spray. Paramedics tried to ease the pain by irrigating the area with two bottles of water and by giving Ms Knott a blanket which she could place between her legs to apply pressure to her vagina.
At the hospital, Ms Knott was treated for the effects of OC spray on her vagina which was causing her extreme pain. This was treated by placing Ms Knott in a shower until she was decontaminated. Because of concerns over the treatment of Ms Knott by the offenders, the paramedics contacted their duty manager for advice. The paramedics also spoke to nursing staff about their concerns regarding the treatment of Ms Knott. They are to be commended.
At the hospital, medical staff asked the offender Black if Ms Knott had definitely been sprayed to her vagina. The offender Black replied, “Yes. You have to do what you have to do.” A senior police officer attended the hospital and asked nursing staff for information about Ms Knott. Nursing staff declined to provide the officer with any information and referred him to the nursing unit manager. I commend the nurses for their actions.
On 22 January 2023, after the incident with Ms Knott, the offender Black exchanged Facebook messages with another police officer who was based at Nepean PAC. The offender Black sent a seventeen second video that he had recorded on his mobile phone at the beginning of the incident with Ms Knott to his colleague. I interpose that he can be seen on the CCTV video apparently doing so while standing in the roadway in proximity to the victim.
In the message exchange at 10:37pm, the offender Black explained to his colleague, “Both OC cans emptied on her. Was fucked.”
On 23 January 2023 at 6:37pm, the offender Black stated in a further message to the colleague, “she was fucked, the whole body-worn is so good, shows her being fucked. Nurses are lodging a complaint, Jonesy is investigating because we caved her, but she had a hold of the cuffs, and we had no other options.”
At 10:43am, Black further explained, “I’m like, she bit us, bled her cunt on us, shat on us and wrestled in the rain on the road naked. Look, my BWV (body-worn video) might not be uploaded yet, this was when she had my cuffs and almost had a full hold of them, and we had no spray left.”
The offender Black sent a one minute twenty-seven second video clip taken from the official police body-worn video camera that he had been wearing during the incident with Ms Knott, to his colleague. Police body-worn video footage is classified as protected information.
On the same day, the offender Black sent a second and separate one minute seventeen second video clip of the incident from his body-worn camera to the same colleague. The two clips contained different video footage. I am not aware of any other exchange between or any details of the exchange between the offender Black and the unnamed recipient.
After becoming aware of the video footage, officers from the Nepean PAC commenced an immediate investigation. As a result, both offenders were suspended from duty.
3 Principles and objects of Act
(1) The underlying principles of this Act are—
(a) to confirm that the possession and use of prohibited weapons is a privilege that is conditional on the overriding need to ensure public safety, and
(b) to improve public safety by imposing strict controls on the possession and use of prohibited weapons.
(2) The specific objects of this Act are as follows—
(a) to require each person who possesses or uses a prohibited weapon under the authority of a permit to have a genuine reason for possessing or using the weapon,
(b) to provide strict requirements that must be satisfied in relation to the possession and use of prohibited weapons,
(c) to provide an amnesty period to enable the surrender of prohibited weapons.
Those principles and objects make it clear that the use of prohibited weapons is a privilege. Police are afforded and entrusted with that privilege. It is conditional on the overriding need to ensure public safety.
The legislation is also intended to improve public safety by imposing what are called “strict requirements. ” So, any person who possesses or uses a prohibited weapon does so under the requirement that they are doing so under the permitted authority and also that they have a genuine reason for using the weapon. Those strict requirements must be satisfied, and they are requirements in relation to not only possession but the use of the prohibited weapon. The Act sets out a detailed regime reflective of the principles and objects of that Act. I have emphasised aspects of it above.
It is a fundamental aspect of being a sworn police officer that they have provided to them what are called by police their “appointments.” They typically include handcuffs, baton, OC spray and a firearm.
They have them in connection with the purposes established by reason of their policing obligation, and they are required to have a genuine reason for using such a weapon by reference to subsection 7(2) of the Weapons Prohibition Act 1998 which ensures that the operation of the criminal provision means the offence of unauthorised possession or use, 7(1), is not limited by an unduly technical notion of purpose.
It has to be a genuine reason, and I emphasise that by their pleas of guilty, it is accepted that they were not acting lawfully. Whilst it might have initially arisen in the ordinary course of their duties as an option its actual deployment as set out in the videos was not at all necessary and the targeted and also reckless use of the OC spray did not amount to a reasonable use of force. It was therefore used otherwise than in accordance with the ordinary course of their duties as police officers.
This may seem obvious, but OC spray is not to be used solely for the purpose of inflicting pain. I acknowledge that that may be a collateral purpose alongside some other need which is reasonable and a consequence which arises in the course of duty in subduing individuals.
I also note that the OC spray was used in contravention of police procedures. Whilst that does not lead to any particular criminal sanction, it is a guide in understanding the nature of the offending here.
As is evident from the combined activities engaged in towards this woman on that day it was clear that it was utilised in a variety of ways, including at a range shorter than ninety centimetres, as will become apparent and is apparent from Crown exhibits. The rendering of OC spray to the face, noting the potential for eye injuries, was quite evident. In addition to that, it was sprayed on her vagina and to those abraded back areas, and this went well beyond any capacity of consideration of reasonableness as to the use of force, and it clearly establishes that the conduct involving the OC spray was, I find beyond reasonable doubt, for the purpose of inflicting pain on the subject, and I find that it was the sole purpose.
This is a sentencing case which is not just about the use of force but the extent of the use of force. Whilst the offenders have pleaded guilty to a single count of common assault and a single count of unauthorised use of a prohibited weapon, those matters are closely intertwined, and this, as is evident from the video and from the body-worn video, is an ongoing event and of significant duration. The rendition of their crimes by way of truncated body-worn video but, more particularly, by way of a CCTV recording, of which they were unaware at the time of the commission of these offences, confirms that.
The obligation of the Court, however, is to impose distinct sentences in relation to each of the Offenders and in relation to each of the offences which brings them here. It is apparent, though, that the common assault has many facets and many acts which are components of the offence, and that the unauthorised discharge of the OC spray occurs at various points amidst the common assault, including at the very start and then, as I indicated, during the course of the common assault.
The events are shocking. The treatment of the victim was clearly brutal and, as I find, and I will develop this further, involves gratuitous cruelty. Untangling the offences from this evident course of criminal assault, it must be acknowledged that the agreed facts involve a discharge of OC spray at a point in time after initial attempts to handcuff and restrain the victim fail. I conclude that when that occurs, their conduct thereafter reflects disgust and anger arising from heightened emotions engendered by both the offenders’ contact with faeces from the victim, and the challenge of dealing with a non-compliant individual who seems bereft of reason.
At first blush, so much is not understandable unless one understands the challenge which is initially posed by her presentation. Her presentation clearly establishes a woman in a florid state of psychosis. She is clearly unable to discern, in many ways, fact from fiction. Her bearing is intense. Her facial gestures, her facial impression is one of profound disturbance, and she presents in a belligerent, abusive and challenging way from the start of the first body-worn video that I have had regard to.
However, these were powers exercised under the Mental Health Act. Front of mind must be that detention was for temporary care and was necessary for the protection from serious physical harm of herself or the protection of others from serious harm.
The evidence comfortably establishes that on this day, a rainy Sunday, the victim was found under a tree sitting on a bag provided to her by Amber Laurel Correctional Centre. There was no one around, and really there was nowhere to go.
There had been an attempt to detain her by force. but the start of this offending is the offender Trautsch walking back from an unmarked police car, having gone there to seek a taser or a long-handled baton. This sets the tone of their intentions and their approach to handling this situation.
It could not be seriously contended that these two gym hardened Police Officers in their twenties, uninhibited by appointments other than cuffs for Mr Black and firearms and OC spray for both of them, both dressed in casual athletic clothing, were themselves at risk of any physical harm.
One can see at 17:23. 29 of the Body Worn Video there is an empty cul-de-sac on that Sunday. You can see boundary fences depicted in order to maintain security of the modern commercial premises, so therefore no gates to walk through, only fences to climb. After wrangling with the officers as they initially endeavoured to cuff her, she defecated. That is quite evident, and she is, at this point, sitting in a puddle and has been there for a discernible period of time. (Image A in the Appendix).
By this stage, the actions of the victim had only been her words and perhaps gestures. They were clearly reflective of her mental state; she could in no way shape or form have constituted in the minds of the officers any serious threat to them or anybody else.
I conclude, and it is not gainsaid in any evidence, that there was no real attempt by the officers to speak with her, to pander to her, persuade her, dupe her, or control her without violence. I find there was no attempt to engage with her in her disturbed state. There was no offer to have a female attend to this naked disturbed female. There was no gentleness. There was only a patina of courtesy that was manifested in the opening interactions.
It is apparent that the offender Black by his words and actions early on concludes that there is a need to restrain her in order to transport her to a relevant facility as soon as the ambulance arrived. This approach accepted the inevitability of physical confrontation, as there was a promise on the part of the victim to put both down like a “piece of shit” should they come close.
She was, at that stage, sitting under a tree, and the response from Mr Black when he had those words directed to him was that she was “not very nice.” In my view, that reflects the obvious reality that there was really no practical menace underpinning them and it appears so much was perceived by the offenders. There was no one around to offend or hurt, and it was a cul-de-sac.
As I say, the fencing precluded entry and the cul-de-sac, effectively, exit, save past the offenders. Despite a faint suggestion in submissions that someone could escape the area by running into the bush at the end, which was some distance away, she never approached the end of the cul-de-sac.
I conclude that whilst she was making threats, there was no real intention or capacity indicated that she would or could do anyone harm. Her response was reactive to the presence of armed police in the context of her compromised mental state. I accept and it can be well understood that the two armed plainclothes men could create fear in the mind of somebody evidently vulnerable, and this naked woman was clearly vulnerable, and her vulnerability was enhanced because she was palpably psychotic.
When the ambulance arrives, she is told she is going to Nepean Hospital, and she will be sectioned. There was a lack of quiet engagement from the officers, and there seemed to be no attempt at such. There was no reassurance or persuasion, no evident allowance for dealing with the mentally ill. There was no attempt to minimise her fears. This woman thought that satellites were looking down on them, that “Jason” would protect her, that the birds were listening and God would give her strength. There was no contemplation then, nor at any other time thereafter, of any other option but a resort to physical restraint.
The complainant said, “It’s not about being scared”, when it was put to her, “It was about being scared of you”, she said. Despite this there was no effort to reassure her by words or actions, or even by allowing time and space, that that concern, that understandable concern should be addressed. Apparently, there were other resources, other police available including I expect one or more female Constables. That ‘Jason’ was watching that the birds, the animals, the aliens were watching was a statement that elicited only laughs from the offenders, and that was noted by the victim “Still smiling, cunt”, she said.
Physical restraint and enforced compliance were the first and last option and resistance was expected to be overborne. Revealed on the video visually and inferentially, by sound, where there is laughter, the restraining commenced in a manner reflective of a resigned ironic impatience on the part of the offenders with this distasteful and difficult task.
Blue gloves are put on before the brandishing of the menacing metallic handcuffs. That is clear on the body worn video and likely frighteningly clear to the victim. I note the sound is off at that time. They then advance towards her. There is a struggle which then ensues. The two of them clearly cannot get her hands behind her back to cuff her. She is rolling around. She defecates. There is some blood there which may well be blood from her although not menstrual blood. There is laughter from one of the offenders.
This initial struggle confirmed it was indeed distasteful and difficult, and resistance was not easily overborne. The offender’s laughter was directed at the circumstances that had now arisen, it was ironic and with some humour found in the co offenders joint and several indignity, Impatience, frustration and animus then took hold of the Offenders.
It would have been initially confronting to the offenders; there is no doubt about it. It was a difficult obligation imposed upon them to detain this victim for her safe transport to a hospital. She could not easily see reason. The initial struggle had not subdued her sufficiently to allow cuffing. Escalation was intended and professionalism and personal restraint was required and to be expected. It is their actions which then follow which attract the counts faced by the offenders.
There is a moment of black humoured banter from the paramedic who confirms the indisputable fact, because he was involved in that black humoured banter, that there was no threat to anyone but herself. The paramedic approaches and wipes the victim’s faeces from the legs of both the offender Trautsch and the offender Black.
The offender Trautsch, I see and hear is dry retching, and I consider it absolutely understandable. That is at 6:46 on the first body-worn video, and that confirms a level of visceral response, and it is reflective of an understandable disgust that the contact with the victim’s faeces would have had.
Nonetheless the offenders are heard laughing. Trautsch uses his phone to photograph the ambulance officer cleaning the offender Black’s leg with wipes and is seen smiling at the end of BWV 2.
The consideration by the offenders then of the use of a taser, indeed a long baton, neither being aware they were not in the unmarked car they were driving I have touched upon. This is at 17. Seventeen of the BWV. It was discussed, at a time when she is sitting cross-legged, with her face directed away from the officers, making no sound. She seems to be washing in the puddle; the paramedic is wiping the offenders of faeces. Trautsch can be specifically heard and seen to laugh.
Time seemed to be of the essence for no reason, and this was all in advance of the use of the OC spray.
When there is first mention of a taser, which the victim clearly hears, there is evidence of profound fear in her. She too is smeared with faeces, and the approach and attitude of the ambulance officer, as I have already noted, is a striking contrast as an apparent endeavour to insert a calming note.
There is an ongoing discussion about a taser. She appeals to God to protect her on a number of occasions but then she is sitting in a puddle there. She endeavours to wash herself. She is told by one or other of the offenders, “Go and wash your cunt, wash your arse.” I also noted there is some laughter at that. Trautsch is attributed in Annexure A (Exhibit E) with the words “wash your dirty stinking arse” There is the use of the word “disgusting”, and that is understandable. It is clear the offenders have resolved to physically manhandle her but as she sits there, there is no question that she is going anywhere, doing anything, harming anybody, threatening anybody, intending or showing that she is going to damage anybody.
There is an apparent escalation of contempt for the victim, angry disdainful remarks directed towards her reveal the state of mind of the offenders as they proceed to undertake the same course of action in precisely the same way but with the additional use of a weapon. Reason was replaced, ultimately, by rage.
I have spent a fair bit of time in relation to the buildup because what ultimately occurs is reflective of a considerable escalation in violence. That is so not merely because of the misuse of the weapon but also because the physical violence inflicted at the same time by both offenders is extreme. Separate single offences ought not mask the fact that they relate to a multiplicity of acts in an admitted course of conduct whereby Ms Knott was unlawfully assaulted.
It is reflective of an intentional wrongdoing which is in no way an error of judgment in the discharge of the professional responsibilities of these offenders. It is serious offending.
There must be a capacity to give full weight to any understandable succumbing to emotion, anger or desire to punish. There must be an expectation that from time to time, errors will be reflected in a general exasperation. There may be poorly understood guidelines, there may be peer pressures, as can often arise in dire situations, these things cannot be judged to a nicety. There may well be a frustration that an important task is poorly resourced and not well understood, nor adequately supported or respected. Police officers are obliged to engage as here. These officers were the ones that were called upon.
Thereafter, the fight unfolds. I do not mean to indicate that it was in any way, shape or form an equal one. Further efforts to handcuff then ensue amidst the spraying and following a deliberate blow by an offender that puts the sprayed and frightened victim back down onto the roadway.
I accept that the remarks of the offender Black to the effect that the whole BWV is “so good”, she was “fucked”, and the BWV shows her “being fucked” confirms that what unfolded was a loss of control indulging base emotions including disgust and anger but not such a loss that the potential presence of cameras in addition to the incomplete BWV was noted. The offenders were also capable of coordinating their attack, particularly the use of the OC spray.
I rely on the videos, as I say they speak for themselves. I also have regard to the two schedules, MFI B summary of illegal acts relied upon by the Crown, and the index to relevant aspects of the videos provided by Counsel for the offenders MFI 2. They are essentially aide memoirs. There are also photo outtakes from the videos which are of considerable assistance in understanding the use of the spray Exhibit E [1]
At an early point when she seems to want to run away, she is swiftly stopped. Image B in the appendix shows from 17:23. 28 of the Body Worn Video. What one can then see there is the blue hands, which are the gloved hands. That is her sitting in the gutter. One can see there then the initial use of OC spray by Trautsch. The painful consequences are evident in the next photo at page 4 of the Exhibit.
Within seconds she is sprayed in a co-ordinated way. Trautsch has the spray and is directing it at the victim who is trying to protect her face. Black is reaching down seemingly to lift her head to enhance the potential for a full face spray. See photos 6-8. The position of the hand with the spray confirms the deliberate targeting, the other offender has hands on the head and hair of the victim to facilitate the shared intention.
One can then see to the left there the use of the OC spray, the angle there at p6. It is not evident, but it is more evident on the video because a white stream is seen, and the victim is moving around in likely agony. Trautsch is placed, at the foot of the helpless victim. Whilst in that position it is quite clear to me and so I find beyond a reasonable doubt that it is at that point there is a contact between OC spray and the vagina as well as the face. The positions of the parties made vaginal contact inevitable. The level of evident targeting is less than what precedes it. Nonetheless the weapon was being used to inflict pain, the women was naked, and her legs were parted. Black admitted knowledge of vaginal contact “Yes” and noted “you have to do what you have to do.” He did not use the can, but he was there to witness it being done.
An image at p10 comes from the Body Worn video at 17:23:49. That is shortly thereafter, the demeanour of Mr Trautsch, unfortunately, is consistent with some evident wry humour on his part shared with his co offender and reflective of satisfaction rather than fear. One can also see her running around in the background and in great pain.
I find there is a grabbing of the handcuffs by the victim. I see that as no more than an inevitable effort on the part of the victim to protect herself, an act of desperation.
Thereafter, the CCTV becomes most relevant. One can see at p 11-13 of Exhibit E, a paramedic holding up a blue blanket, in some way, to perhaps receive her in a kindly and caring environment. One can see the victim off to the left, and it is at that point that she is knocked to the ground by Mr Black. From the CCTV the time stamp unadjusted is 17:38.16 and adjusted it is 17:24.10. So, within seconds of the initial spraying set out above inducing her terrified running around she is knocked to the ground by a committed strike.
In the next still from the CCTV taken from 17:38.17 unadjusted and 17:24.11 adjusted one can see one of the offenders moving towards her.
Thereafter ensues what can only be considered to be a committed and disgraceful two handed attack. One can see in these stills, image 14 and 15 kicking, blows raining down and stomping. It is the Courts experience that stomping is a particularly risky assault, especially when an individual is against a hard surface. The image is from 17: 38.57 unadjusted.
Blows are rendered to the head. OC spray is administered, and it is clearly calculated, in my view, to inflict maximum pain and discomfort, whilst purporting to try and free some handcuffs which had been deployed by the offenders, from her hands. I emphasise I do not see her in any way, shape or form endeavouring to obtain them as some kind of weapon or wield them in any kind of aggressive way.
I am unable to conclude beyond a reasonable doubt that the spraying of the vagina was deliberate, but it was entirely likely, and indeed, there did not seem to be any care, as I say, because the OC spray was, to my mind, being deployed with the sole purpose of inflicting pain. I have noted the positioning of the offender towards the feet, and while she is moving around in various ways, also gives rise to my conclusion it is at that stage too that her vagina is sprayed I noted Mr Black’s admission to the nurse.
Both cans of spray were emptied on the agreed facts.
It is apparent in the minds of the offenders there is anger, there is disdain and a desire to punish. There is exasperation and disgust engendered in the offenders, and it is reflected in the deliberate misuse and a very high degree of recklessness at the very least, in relation to the vagina contact. It also manifests a complete and utter contempt for the victim.
Thereafter Images from the CCTV stills at 17:39.00 unadjusted and following demonstrate that, see p14-23. It shows the two offenders standing over the victim as she lies on the ground.
Image H of the Appendix taken from 17:39.04 unadjusted shows further assaults. There seems to be some kind of hilarity. There is some further assault ongoing there with the OC spray.
Five seconds later at 17:39.09 the Image I of the appendix gives one the clear image here of the assailants towering over this woman who is trying to protect herself as best she can.
This next still from 17:39.33 (unadjusted)(Image J of the appendix) exemplifies what was going on here. That is quite clearly the offender Black deliberately targeting the abrasion on the back and spraying OC spray onto her. As I say, it speaks for itself.
The next image (image K of the appendix) is one second later and shows one of that same man leaning over to continue spraying the victim. The fact that the man has to stoop down to get in close, it can only have one purpose, and it is certainly not a lawful one, it is to inflict pain.
The still that is image L of the appendix at 17:40.10 (unadjusted) shows the paramedics or a paramedic there, as I say, the source of a concern raised and no doubt the initiation of the kind of context within which, when a man called “Jonesy” comes to speak about this with the complainant, the nurses were not going to allow that to occur despite “Jonesy” being a police officer.
Fifteen seconds later you can see the victim being restrained. (image M of the appendix).
There are a number of statutory factors that exist here which aggravate the offending behaviour, and I find them beyond reasonable doubt.
The offenders were in a joint criminal enterprise. They were in company. It may well have been spontaneous, but they were in company, and that is under s21A(2)(e) of the Crimes (Sentencing Procedure*) Act 1999*, In company has a potential effect on the victim by way of coercion, intimidation or otherwise, but they were acting together as a unit, and as the video shows, they were relentless in that interaction.
It also emboldens a person, that they are in company, and they are sharing a common purpose.
There is also this vulnerable victim, as a result of her mental illness, clearly present from the outset of their dealings with her and accepted by them in purporting to exercise their powers on, effectively, that basis. s21A(2)(l). The Statutory provision is concerned with the weakness of a particular class of victim and not the threat posed by that class of victim, and she was clearly vulnerable; see Betts v R [2015] NSWCCA 39 at [29].
The offenders abused a position of trust or authority, 21A(2)(k). These were sworn policemen, They were on duty. Accordingly, they were in a position of authority and in a position of trust, both of them separate aggravating features.
The relationship is one recognised by the common law as imposing upon one of the participants a particular responsibility not to act to the detriment of the other because of the particular relationship; Suleman v R [2009] NSWCCA 70.
Their breach of trust exacerbates criminality where it is imposed. Here these offenders were engaged as police and so understood to be working in an environment where they were trusted. A victim is entitled to assume that a person will not abuse their position of trust; see Waterfall v R [2019] NSWCCA 281.
Not insubstantial weight must be given to these two particular factors in this case.
In relation to gratuitous cruelty, I did invite the parties to address me further. Again, I was assisted by the position that was taken there by Counsel. It does in part rely upon an inference as to the motivations for their actions. I have dealt with aspects of that above.
McCullough v R [2009] NSWCCA 94 deals with this question in the judgment of Howie J at [30]:
“Gratuitous cruelty seems to me to suggest that the infliction of pain is an end in itself. It is needless yet intentional violence committed simply to make the victim suffer.”
In my view, it is necessary in order to form a proper assessment of the seriousness of the assaults here by these two men upon the complainant, as well as to properly assess the seriousness of the misuse of the prohibited weapon, to consider the concept of gratuitous cruelty. That explains the needed review of the facts leading up to the deployment of the spray as it is reflected in evidence and inferences as to motivation.
McCullough has been consistently applied; see Ryan Gurney v Regina; Aaron Willetts v Regina [2011] NSWCCA 48, Melvaine v R [2019] NSWCCA 274.
In my view, the evidence does support such a finding beyond reasonable doubt in relation to the infliction of pain by misuse of the weapon. I find that there was needless and intentional violence inflicted. I struggle to see any other purpose for the number of sprays, the areas sprayed, the forced positioning for receipt to the face.
In addition to that the manner of the common assault featuring a relentless attack, kicks, stomps, and blows upon a naked unarmed woman while she is on the ground when one looks at the context within which it arose, reflects the finding I have already made to an evident degree, that these two offenders were gratuitously cruel, that they lost, initially their professionalism and decency and then their composure and control.
They embarked upon the assault in an emotionally heightened state of anger, frustration, and indeed malice so that they expended two canisters of the OC spray with deliberation.
A fundamental purpose of the criminal law, and of the sentencing of convicted offenders, is to denounce publicly the unlawful conduct of an offender. This objective requires that a sentence should also communicate society's condemnation of the particular offender's conduct. The sentence represents “a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law.”
The question arises as to those who might otherwise be tempted by the prospect that only light punishment will be imposed because of a preponderance of sympathy, understanding or an expectation that there ought to be appropriate insights and weight given to the challenges of policing.
In my view, the situation arises from this point on, involving a class of persons, that is, police, to ensure that in any sentence imposed in a case where these are the circumstances, that police officers armed with and responsible for the use of weapons in their official duties generally do not understand that there is some kind of timidity in confronting misuse. There are expected to be strict requirements under the Act, and so, in the appropriate case, strictly imposed. I am not of the view, as seemed to be in the case in a different factual scenario in R v White [2025] NSWCCA 111, that there were any unique circumstances here.
The deployment of weaponry, the deployment generally of force by way of physical restraint, handcuffs, tasers, OC spray (in this case), the potential for a long baton, seemed all comfortably and immediately referred to by the offenders as a range of appropriate options. That did not appear directly, at the start, what was required as all of this was in the face of someone who clearly may have been best approached in a kindly manner.
The forgoing analysis comfortably places the s 7(1) weapons offences into the upper part of the mid-range of objective seriousness. Indeed, it may be a question on which reasonable minds may differ, but it certainly, to my mind, it is a matter that sits quite clearly as a most egregious breach of the law.
In relation to the physical attack, which is the common assault for which there is a two year maximum penalty, that really does sit at the top of the range. That does fall into the most serious category for offending of that kind and will command an appropriately stern sentence, as indeed must the s 7(1) matter.
This is in combination, so the Court has to ensure that it does not leave open the possibility of there being a perception that the most serious matter in terms of the penalty, is polluted by inappropriate aggravation as a result of matters which do not relate to the discharge of the OC spray. Nonetheless, there must be a degree of accumulation between the sentences imposed, but I will turn to totality in a little while.
There is, in the case law, a broader recognition of the potential for a recurrent or pervasive social ill arising from misuse of weapons in the hands of those afforded respect and tolerance. There has to be an element of general deterrence in these sentences.
General deterrence may be thought to operate in the margins of a case where there is an error of judgment in the discharge of a professional responsibility, but it does have an important role to play in cases of intentional wrongdoing, especially where the offending may represent a recurrent pervasive social ill. With police officers carrying so many appointments, which unfortunately commonly need to be deployed, it should be stated and emphasised in the consequences to offenders that the weapon has got to be possessed and deployed according to the law, per [92] of R v White [2025] NSWCCA 111.
Both offenders in advance of this were of good character. They have no relevant criminal convictions, and that is entitled to be weighed evidently in mitigation, and I do so, s 21A(3)(c).
There was a forensic contest in this case relating to mental health issues. The Defence material on behalf of both offenders included reports from Dr Sam Calvin, exhibits 1A and 1B. The Crown tendered as exhibit D a report of a Dr Suzanna Goodison. Both of those experts are psychiatrists. Dr Calvin had seen both offenders. Dr Goodison had only seen Mr Trautsch. There was also Alice Neal, psychiatrist, who was referred to in the course of cross-examination who had seen Mr Black.
Whilst there had been a forensic contest foreshadowed in relation to psychiatric evidence, as well as a proposal to promote material from a determination in another jurisdiction touching upon relevant psychiatric conditions, that in the event did not occur.
What did occur, though, was that the defence did rely upon Dr Calvin’s reports, it seems, in a slightly different way. He was required for cross-examination by the Crown.
As a general concept, it is well known and understood that self-serving statements made in reports and documents where offenders are not subjected to cross-examination and do not give sworn evidence, where the propositions are not tested, and where there is a dearth of independent corroboration of the self-serving accounts, must mean that those self-serving accounts should be approached with considerable circumspection. It is common that offenders who rely upon such exculpatory material, where it is in dispute, typically are required to call some evidence independent of the conclusions in order to understand and give weight to the narrative upon which the opinions depend.
The touchstone is whether or not the self-serving statements remain untested. Material of that ilk can become a matter of weight, but it is well understood that a sentencing Court is entitled to treat the material as being of little or no weight in an appropriate case; see Regina v Elfar [2003] NSWCCA 358 at [25].
In relation, though, to mental health professionals, of which Dr Calvin is one, it is also the case that there can be no requirement sometimes at law to exercise very considerable caution before relying on its contents absent evidence from the offender because the diagnosis is from an expert who one would expect, and in this case, I am not being critical of Dr Calvin, is capable of giving a firm, persuasive, professional opinion; see Lloyd v R [2022] NSWCCA 18.
Of course, the opinion is typically governed by the quality of the material upon which it relies, and the weight to be attributed to the opinion ultimately rendered by the expert can reflect that. As I say, Dr Calvin was cross-examined. I did not find him particularly decisive in relation to many aspects, and he certainly was someone who, in my view, openly accepted that there may well be some contextual bias arising in circumstances where he received reports from others but was also given a letter of instruction, as he called it, in relation to both individuals and where there was a situation of acceptance of long-standing psychological and psychiatric complaints. It seems though Dr. Goodison and the other psychiatrist were not particularly convinced about pre-existing complaints, and that is pre-existing this particular event.
He was cross-examined as to an issue of malingering on behalf of both of the offenders. The following exchange took place between the Crown and Dr. Calvin at page 58 line 41 of the transcript:
“Q. And malingering is where you are effectively using the psychological process with a psychologist or a psychiatrist for your own means and making things up, is that right?
A. Broadly, malingering would be a term used to say that they have - they've embellished the symptoms for a secondary gain or not a - sorry, not a secondary gain, for a primary gain. So, there is a gain to be achieved by embellishing symptoms. That's how I understand it.
Q. Thank you. And it is correct, is it not, that often one of the problems with doing psychological assessments is that symptoms described by patients are very subjective to them as an individual, is that right?
A. Yes and, and - yes. And that's the nature of mental illness, you know, it's subjective to each person as well. They - each person describes their symptoms differently.”
As I understand it because the symptoms are commonly subjective to an individual. I look to whether there is any tangible or reliable evidence sufficient to establish to a probability the presence of relevant mental illness or conditions. In advance of this offending. There is no such evidence allowing me to so conclude on the balance of probabilities.
There certainly seems to be evidence post the offending which does allow for a conclusion as those two men sit there of some PTSD as well as some major depressive disorders. In relation to one of them, there is an alcohol disorder as well. The significance, therefore, is, and indeed, if I might say so, Defence Counsel Mr Micali, in a responsible, fair, persuasive and disciplined submission, accepted that the preponderance of the evidence does not allow for a finding on the part of this Court of a relevant causal or contextual connection between any pre-existing mental condition of these offenders and the offending.
What also was revealed there in the various reports was some scepticism on the part of the other psychiatrists as to the reliability of the accounts that they were given, particularly Dr Goodison as well as the psychiatrist Dr. Neal who saw Mr Black. The end result is that I consider that there is no relevant mitigating factor arising in relation to those aspects so as to diminish the objective seriousness or moral culpability of the offending and offenders. However, there is a situation where there are now existing matters which go to assist in establishing special circumstances in this matter.
These were young men of good character. When they joined the police force, they did so for the very best of reasons. The defence provided a ream of character material in mitigation. There is a litany of references here deposing to all, the service that both of them had undertaken within the community, and they have been doing so for years.
They are equally considered to be people of good humour, of reliability, of honesty, trustworthiness, of restraint, leaders in the various environments. They are much loved, and they contribute to their family and professional environment, and these are important considerations.
Indeed, when I turn to that, it should be noted that they have made a change from previous employment to become policemen and so serve the community. I consider they are wholly unlikely to reoffend having previously been of good fame and character.
They have good prospects of rehabilitation.
They have fallen from such a great height, they have lost their job, their reputations, and they have had to endure the shame that they have imposed on their family and their name. They have, in my view, excellent prospects of rehabilitation.
The question does remain as to remorse and evidence of remorse.
I have received from Mr Black and from Mr Trautsch letters which purport to demonstrate remorse. There is deep sorrow and suffering from Mr Black about complications caused by his actions. He does grasp the necessity for police officers to handle and deal with the circumstance of high risk or mental health patients with safeguards and appropriate mechanisms. I note that he prefaces the remorse and apology by emphasising his asserted pre-offence mental health condition. I have dealt with that above.
It seems to me that reliance upon those asserted conditions and frontline law enforcement trauma is pressed by him, as well as by Mr Trautsch, as being important aspects affecting their judgment and decision making. That seems also to be resonant in a number of the references that are provided. It does not appear that anybody who has written those references understood the objective reality which I have come to understand by way of the videos or even by way of the agreed facts. There is an absence of acknowledgements to that effect in the references.
I accept this is an aberration in relation to the personalities that I have been exposed to here, there is no question about that, but it is a serious aberration, There are concerns expressed by Mr Black, that there is a lack of training, and he was faced with a constantly high operational tempo. He attributed his inability to deal with what he asserts are key factors in his misconduct to his untreated mental health difficulties and his inability to address those because of workplace stigma and toxic workplace culture.
He talks of collective conditioning. This is from an offender whose accounts to psychiatrists are less than fulsome. In another example he asserted to one of his referees that he had developed a liver issue arising from the incident, which is because of contact with the victim’s bodily fluids during the course of the matter before the court today. There was a suggestion of menstrual blood. That could be a weighty matter in mitigation, as extra curial punishment at least. There is absolutely no evidence of that or of a liver issue.
It does seem to me that there is an inhibition here in taking responsibility. I will, of course, allow for such weight as one can, but there is a lot of self-justification too in the face of all the outstanding things that it is said that he has done in the police, the recollected images he has had to endure, I will give such weight as I can to that.
In relation to Mr Trautsch, again in my view, there are a number of inconsistent accounts and coloured renditions in various documents seemingly to elide the responsibility, in part, into the lap of the employer and the job and so forth. It is a reality that there are the challenges of that sort, but the regularity of consequential contact said to be made with a psychologist or psychiatrist pre-offence is not established, There is not any evidence which assists me in observing and confirming that. He is not to be punished for that, but it means there is a lack of fulsome adoption of responsibility which allows me to accept that full weight could be given to it.
The pleas itself seemed to me to be no more than an acceptance of the inevitable.
These men are vilified, or will be, even more so in the community. That is a particular weight upon them. That is something which they will have to bear, They are embarrassed by their actions. They are disappointed by putting an unnecessary pressure on their families, of course, it is very saddening.
Upon reflection, they came to the realisation there were probably other possible solutions to achieve a more effective outcome, although their choice of actions and their consequences seems on their accounts to have been escalated beyond their control, in a tragic turn of events.
I do not want to go beyond accepting that there seems to be no aspect of their background relied upon here which would enliven any of the Bugmy principles.
The consequences to them and to their partner in one instance, and the families, of these events have been quite profound. I take the effect upon the family of any potential sentence here as part of the general mix.
In relation to the videoing of the events and its provision to others, that is just a serious reflection upon Mr Black in circumstances where, yet again, it is a manifestation of a seeming disdain for the victim or feeling of unaccountability. One wonders what possibly could have been the motivation. It does reveal his attitude. It does reveal his immediate lack of contrition. It is a matter of some seriousness, that certainly has to be seen as requiring a custodial sentence in all the circumstances.
I find special circumstances, because there is a need for a greater than usual period on parole in order to reflect their first time in custody. I have touched upon current mental health conditions also requiring support.
I also make a point about a matter which was raised here, and that relates to conditions of custody. There has been an understandable submission that in relation to conditions of custody, because of their role as police officers, that they will be doing that time harder. I have heard no evidence in relation to those conditions of custody. The fact that an offender may be required to serve a sentence in protective custody. and that there is a prime facie potential for that, is a relevant matter on sentence. The situation has changed over the years, and so the Court should not automatically reduce a sentence because the offender has been or will be on protection. I have heard no evidence at all in relation to this beyond an assumption.
Currently, protected custody should not be presumed to be a more onerous prison environment than the general prison population; see Clinton v R [2009] NSWCCA 276, and more particularly, R v Durocher-Yvon [2003] NSWCCA 299. Before I can factor that in, in mitigation, I must have evidence, clear evidence which must be adduced on sentence and the Court of Criminal Appeal has made that clear, see Clarkson v R [2007] NSWCCA 70, and in that regard, also the R v LP [2010] NSWCCA 154.
I do accept, as a result of the Court’s own experience, that these offenders will be held in custodial environments which are tailored to protect them given their prior occupations. They will not be classified in the general way. They will not necessarily go to a prison close to home to facilitate personal contact. They will not necessarily go to places where there is much to do in terms of industry or otherwise. I therefore give some limited weight to conditions of custody, because I do conclude that they may not have the full array of opportunities for courses and work and the like, such as it may be, available to them.
I note that there was a submission that an appropriate mechanism to reflect all the principles of sentencing would be a Community Correction Order for both of them.
I also note that it is suggested that one is more criminally involved in the spraying and common assault than the other. I do not consider that to be the case. They were both in it together. Their roles reflected some different particular acts, but the entirety of the attack was the same, it was the joint and coordinated action of both. I do not see that there is any utility or evidential basis in distinguishing their objective involvement. Their subjective circumstances are relevantly similar also.
Finally. what is most striking here is the evident lack of kindness from the outset towards this vulnerable person. Despite that person’s presentation as fearful and deluded, despite a clear concern that she not be touched, she be left alone, the approach adopted from the outset, and indeed this may be an insight into current policing culture, she was confronted with requirements, not requests, commands, not invitations, and very quickly, it is quite apparent, she was going to be detained, restrained and transported no matter the circumstances.
It is apparent that the offenders quickly resolved to deal with this matter forcefully, that they were content to escalate that force until compliance had been imposed. Compliance was not easily achieved. Anger, frustration and entitlement manifested themselves, and then ultimately to an evident loss, though not completely, of control, a depersonalisation, and an intended resort to all and every coercive technique and item at their disposal, including their feet.
That there was no pause to reflect or consider is very much a feature of the criminality here. They were personal decisions, they were individual decisions, and in the circumstances, in my view, considered decisions. Those who offer themselves up to serve their community in the very difficult task of policing are expected by the community and trusted by the community to not only enforce the law but abide by it strictly.
That any time individuals truly consider that their subjective state, a state commonly arising from the traumas they confront and the challenges they must meet, are compromised, so compromised they cannot do their job, it must be their responsibility to take steps to address it. They must be supported in an environment where that responsibility is recognised and recognised as a paramount responsibility.
There can be little mitigation available if, when truly put upon notice that they may resort to violence such as this, the misuse of weaponry such as this, that others, their cohorts, their employers, reflective of some purported culture, might turn away from because of an expectation or a preference not to be seen as weak. They should be seen as strong enough to face their demons and their challenges. In the event here, there is no diminution in culpability available on the evidence here. This is very serious offending. This requires nothing but full-time custody.
For the offender Nathan Black, the sentence here is as follows:
I have decided to impose an aggregate sentence of imprisonment.
The aggregate sentence I impose consists of a head sentence of five years and nine months with a non-parole period of three years and three months.
Commencing from today, 8 August 2025.
You will become eligible to be released on parole on 7 November 2028.
The head sentence will expire on 7 May 2031.
The sentences that would have been imposed for each offence, if separate sentences had been imposed instead of an aggregate sentence are:
(a) For the offence of Common Assault, count two on the indictment, a sentence of 19 months. (b) For the offence of Unauthorised use of a prohibited weapon (OC Spray), count four on the indictment, a sentence of a non-parole period of 2 years 6 months and a head sentence of 4 years 6 months. (c) For the offence of Intentionally communicate protected information, count six on the indictment, a sentence of 9 months. (d) For the offence of Intentionally communicate protected information, count seven on the indictment, a sentence of 9 months.
For the offender Timothy John Trautsch, the sentence here is as follows:
I have decided to impose an aggregate sentence of imprisonment.
The aggregate sentence I impose consists of a head sentence of five years and six months and a non-parole period of three years.
Commencing from today, 8 August 2025.
You will become eligible to be released on parole on 7 August 2028.
The head sentence expires on 7 February 2031.
The sentence that would have been imposed for each offence if separate sentences had been imposed instead of an aggregate sentence are:
(a) For the offence of Common Assault, count three on the indictment, a sentence of 19 months. (b) For the offence of Unauthorised use of a prohibited weapon (OC Spray), count five on the indictment, a sentence of a non-parole period of 2 years 6 months and a head sentence of 4 years 6 months.
Despite what has gone on in the lives of the offenders here, they have carried themselves in this Court with dignity and courtesy. That bodes well for the future, and they have a future.
Appendix: Extract of Exhibit E stills:
A:
B:
C:
D:
E:
F:
G:
H:
I:
J:
K:
L:
M:
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The photos were displayed in open court individually from time to time during the course of the remarks on sentence.