In R v Black and Trautsch [2025] NSWDC 447, Turnbull DCJ had to sentence two senior constables who had assaulted a women after making the decision to detain her under the Mental Health Act 2007 (NSW) s 22.  Saying it like that, however, in no way communicates the seriousness of the officer’s actions, which are described in the judgment. The background is given at [16]-[18]; [22]:

Shortly before 5pm on Sunday, 22 January 2023, a member of the public dialled 000 to report a naked middle-aged female sitting by the side of the road in Smith Street, Emu Plains. That naked female was the victim. 

… 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…

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. 

His honour set out what happened at [56]-[107]:

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… 

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…

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.

Escalation following the use of OC spray to the face and vagina.

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…

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…

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… 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… 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.

… 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. … within seconds of the initial spraying set out above inducing her terrified running around she is knocked to the ground by a committed strike…

Thereafter ensues what can only be considered to be a committed and disgraceful two handed attack. One can see …  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…

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 … shows further assaults. There seems to be some kind of hilarity. There is some further assault ongoing there with the OC spray.

… the clear image here of the assailants towering over this woman who is trying to protect herself as best she can.

This next still … 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 … 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.

… Fifteen seconds later you can see the victim being restrained…

Ms Knott was transported to hospital by NSW Ambulance paramedics.  The paramedics raised their concern about the police treatment of Ms Knott with their duty manager and the nurses at the hospital.   A senior police officer attended the hospital and asked for details about Ms Knott which the nurses on duty refused to provide.  His Honour commended the paramedics and the nurses for their conduct ([36]-[37]). 

One of the officers shared the body worn video with other officers with comments such as ‘Both OC cans emptied on her. Was fucked” and “she was fucked, the whole body-worn is so good, shows her being fucked…”

In deciding the appropriate sentence His Honour noted their position as police officers both with the authority and duty to act to protect the vulnerable person. Their actions were an abuse of both trust and authority ([112]-[114]). His Honour found (at [121]) that ‘these two offenders were gratuitously cruel, that they lost, initially their professionalism and decency and then their composure and control’

With respect to the question of whether anything less than full time custody might be an appropriate sentence His Honour said (at [170]-[174]):

… 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.

His Honour sentenced Black to imprisonment for five years and nine months with a non-parole period of three years and three months.  He will be eligible for release on 7 November 2028.  Trautsch was sentenced to imprisonment for five years and six months with a non-parole period of three years. He will be eligible for release on 7 August 2028.

Discussion

There is little to usefully add to the shocking description given by Turnbull DCJ.  The most useful lesson, for both paramedics and police, is to remember that action under the Mental Health Act is a protective action.  The powers given are there to protect and act in the best interests of a mentally ill person. The powers are not there to make life easier for police by allowing them to ‘clear’ a call quickly or ensure that the mentally ill show due respect and compliance to police orders.

Police may have the obligation to resolve the issue ([85] see also R v White [2025] NSWCCA 111) but that does not extend to, nor excuse the unlawful use of excessive force. 

Paramedics do not have access to the sort of weapons that police have but they do have access to restraints and in particular chemical restraints.  If you are feeling ‘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’ you step away rather than resort to force that can justified as ‘reasonable’. When you start acting because of your ‘disgust’ or to assert authority; when the action is for a purpose other than therapeutic need then the actions are no longer ‘reasonable’.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.