R v Lopesi

Court of Criminal Appeal (NSW)|2024-12-11|Before: Harrison CJ, Davies J, Rigg J

Solicitors: Office of the Director of Public Prosecutions (Respondent) Legal Aid Commission NSW (Respondent) File Number(s): 2023/52504 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: Nil Date of Decision: 06 August 2024 Before: Arnott SC DCJ File Number(s): 2023/52504

HEADNOTE [This headnote is not to be read as part of the judgment] The respondent pleaded guilty in the Local Court to an offence of dangerous driving occasioning death contrary to s 52A(1)(c) of the Crimes Act 1900 (NSW). The respondent also pleaded guilty to an offence of not give particulars to police contrary to s 287(1) of the Road Rules 2014 (NSW). This was a related offence on a s 166 certificate. The respondent was sentenced to imprisonment for 2 years commencing 6 September 2024 and expiring 5 September 2026 with a non-parole period of 1 year expiring 5 September 2025. The respondent, who was aged 54 at the time of the incident, was employed as a bus driver. The bus route being driven on the day included the collection of students from Macarthur Anglican School at Cobbitty. On 15 February 2023, after the school children had filed onto the bus, the respondent heavily accelerated the bus before failing to negotiate a right-hand bend. The bus then mounted a gutter before continuing forward onto a concrete paved area where school students were gathered. The respondent did not brake and did not turn the steering wheel. The front window of the bus then collided with a tree directly adjacent to the paved area and thereafter struck a 14-year-old boy who was standing near the tree, forcing him under the front nearside of the bus. While the bus continued moving forward, the front nearside wheel ran over the lower torso area of the boy. Approximately 10 metres from the tree, the bus collided with a steel lamp post. The bus continued forward with MC being ejected from under the bus. The bus eventually came to a standstill 30 metres from the tree. The boy was taken by ambulance to Liverpool Hospital, but he died from his injuries. The respondent told medical staff at the hospital that she pulled on the handbrake of the bus but it did not work. She was tested for alcohol and drugs and returned negative results. The bus was subject to a forensic mechanical examination which determined that no mechanical defect contributed to the collision. In his remarks on sentence the sentencing judge allowed a discount of 25% for the respondent's pleas of guilty. His Honor considered that no other sentence than a term of imprisonment was appropriate. His Honour also found that there were special circumstances, namely the respondent's mental health issues, age and this being her first time in custody, that justified an alteration of the statutory ratio. The Crown appealed pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) on the following grounds: Ground 1: The sentencing judge erred in his assessment of the objective seriousness of the offence. Ground 2: The sentencing judge erred in finding that the respondent "mistakenly put her foot on the accelerator instead of the brake and grappled to no avail with the handbrake". Ground 3: The sentence pronounced is manifestly inadequate. The Court (per Davies J, Harrison CJ at CL and Rigg J agreeing) held, dismissing the appeal: As to Ground 1: 1. The Crown's submission that the sentencing judge adopted a prescriptive approach to the relevant aggravating factors was not accepted. His Honour considered each factor having regard to discussion of these factors in the guideline judgments. His Honour's determinations on these factors involved factual findings that were open to him. There was no misapplication of principle by the way the aggravating factors or objective seriousness were dealt with: [1] (Harrison CJ at CL), [47]-[48] (Davies J), [92] (Rigg J). Mulato v R [2006] NSWCCA 282; R v Bugmy (No 2) [2014] NSWCCA 322; (2014) 247 A Crim R 556; R v Jurisic (1998) 45 NSWLR 209; R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343, cited. 1. The sentencing judge was correct in his finding that a custodial sentence of less than 3 years was appropriate. The sentence imposed bears out the finding of objective seriousness: [1] (Harrison CJ at CL), [49] (Davies J), [92] (Rigg J). R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343, cited. As to Ground 2: 1. It was open to the sentencing judge to accept the respondent's evidence and find that she mistakenly put her foot on the accelerator instead of the brake. Both the CCTV footage and the respondent's evidence provide a good basis for the sentencing judge's conclusion: [1] (Harrison CJ at CL), [67]-[69] (Davies J), [92] (Rigg J). As to Ground 3: 1. There was nothing in the respondent's subjective case that suggests a sentence within the guideline judgment was not appropriate. The offending clearly fell within the sentence range in Whyte that does not involve an offender with a high level of moral culpability: [1] (Harrison CJ at CL), [81]-[83] (Davies J), [92] (Rigg J). R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343, cited. 1. The respondent's subjective case was a reasonably strong one. The respondent was clearly remorseful, a person of prior good character and had good prospects of rehabilitation: [1] (Harrison CJ at CL), [84] (Davies J), [92] (Rigg J). 2. It was entirely appropriate that the sentencing judge found special circumstance because of the respondent's mental health issues, age and this being her first time in custody. Alteration to the statutory ratio is ultimately a matter of discretion for a sentencing judge and this Court should be slow to intervene: [1] (Harrison CJ at CL), [86] (Davies J), [92] (Rigg J). Caristo v R [2011] NSWCCA 7; Ho v R [2013] NSWCCA 174; MD v R [2015] NSWCCA 37; R v Cramp [2004] NSWCCA 264; R v Lulham [2016] NSWCCA 287; (2016) 263 A Crim R 287; Trad v R [2009] NSWCCA 56; (2009) 194 A Crim R 20, cited.

JUDGMENT

HARRISON CJ AT CL: I agree with Davies J.
DAVIES J: The respondent pleaded guilty in the Local Court to an offence of dangerous driving occasioning death contrary to s 52A(1)(c) of the Crimes Act 1900 (NSW). The maximum penalty for the offence is imprisonment for 10 years and there is no standard non-parole period.
The respondent also pleaded guilty to an offence of not give particulars to police contrary to s 287(1) of the Road Rules 2014 (NSW). That was a related offence on a s 166 certificate. It is an offence that carries a maximum penalty of 20 penalty units.
In respect of the offence of dangerous driving occasioning death Judge Arnott SC sentenced the respondent to imprisonment for 2 years commencing 6 September 2024 and expiring 5 September 2026 with a non-parole period of 1 year expiring 5 September 2025.
The Crown now appeals pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) on the following grounds: 1. The sentencing judge erred in his assessment of the objective seriousness of the offence. 2. The sentencing judge erred in finding that the respondent "mistakenly put her foot on the accelerator instead of the brake and grappled to no avail with the handbrake". 3. The sentence pronounced is manifestly inadequate.

The offending

The respondent was sentenced on the basis of a statement of agreed facts. In addition, the sentencing judge was provided with extracts of CCTV footage together with a summary of that footage, and an enlarged diagram of the scene of the incident.
The respondent gave evidence at the sentence hearing. The Judge had affidavits from the respondent's husband and daughter as well as character references. The respondent's daughter also gave evidence, as did a psychologist who had been treating the respondent since a time after the incident.
The respondent, who was aged 54 at the time of the incident, was employed as a bus driver for an organisation called "Busabout" which runs public buses in the Smeaton Grange region for Transport for New South Wales. The respondent was the holder of an unrestricted medium rigid New South Wales licence. The bus route being driven on the day included the collection of students from Macarthur Anglican School at Cobbitty.
At 2:31pm on 15 February 2023, the respondent drove the bus into the grounds of the school. The grounds included a 9.5m wide access loop road which allows vehicles to travel in a one-way clockwise circle for drop off and collection of students. The loop road comprised 4m wide designated bus bays on the left-hand side of the loop, painted with diagonal lines, alongside a 5.5m wide driving lane for access use by vehicles. The school access loop was governed by a 20km/h sign posted speed limit.
On the day concerned the weather was fine and there had not been any rain previously. The bus parked in the first designated bus bay, immediately before the staff carpark. School children began to file onto the bus from a little prior to 2:39pm.
The incident happened within a short period of time. At 2:46:16pm the respondent closed the doors of the bus. At 2:46:18 pm the bus began to drive away from its stationary position. The respondent heavily accelerated the bus before failing to negotiate a sweeping right-hand bend. At 2:46:24pm the bus collided with a raised concrete kerb and gutter, mounting the gutter. The bus then continued forward onto a concrete paved area where school students were gathered. The respondent did not thereafter brake and did not turn the steering wheel.
At 2:46:26pm the front nearside window area of the bus collided with a tree located in a garden area directly adjacent to the paved area, causing a large branch to fall from the tree. The bus's impact with the tree caused it to deviate and commence to travel in an easterly direction. The nearside front area of the bus then struck 14 year old MC who was standing near the tree, forcing him under the front nearside area of the bus.
While the bus continued moving forward, the front nearside wheel and tyre ran over the lower torso area of the boy. Approximately 10 metres from the tree, the bus collided with a steel lamp post/bollard. The bus continued forward with MC being ejected from under the bus and coming to rest on the concrete paved area between the tree and the steel bollard.
At 2:46:34pm the bus came to a standstill approximately 30 metres from the initial impact with the tree, facing towards the chapel.
After the bus was stationary, the respondent remained seated in the driver's seat in a conscious, calm state for a duration of approximately 56 seconds before becoming hysterical, throwing her arms and head around and screaming. Students on the bus yelled at the respondent to open the doors, with many attempting to break the glass windows to get off the bus. The respondent eventually opened the front doors and the students left the bus.
Witnesses attended to MC, with teachers and a parent doctor performing CPR whilst they waited for emergency services. Emergency services then attended and aided him. Due to suspected serious injuries sustained, he was taken by ambulance to Liverpool Hospital but he died at 4:05pm from his injuries.
At some point the police attended at the school. The respondent was still in a catatonic state and was conveyed to Liverpool Hospital for appropriate medical assessment and treatment. The respondent was cleared by doctors who determined that "she had no medical event that could explain" the collision. The respondent told medical staff that she had a full recollection of events, and said that she pulled on the handbrake of the bus but it did not work. She was tested for alcohol and drugs and returned negative results.
The bus was subject to a forensic mechanical examination which determined that no mechanical defect contributed to the collision.

Remarks on sentence

Having set out the facts of the matter, his Honour turned to consider the seriousness of the offence. His Honour first approached the matter, as the Crown had in its submissions to his Honour, by reference to the guideline judgment in R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343. His Honour found that the case involved an offender (not young in this case) with no prior convictions where the victim was a stranger to the offender, there was no or limited injury to the driver, genuine remorse and a plea of guilty of limited utilitarian value.
The Crown had submitted to the sentencing judge that five of the 11 aggravating factors enumerated in Whyte applied, namely, number of people put at risk, degree of speed, erratic or competitive driving, length of journey during which others were exposed to the risk and ignoring of warnings.
His Honour found that a number of people were put at risk, being the 31 children on the bus and the hundreds of children in the vicinity where the accident occurred. His Honour found that the respondent did ignore the warning presented by the presence of the children.
His Honour considered that "degree of speed" was not relevant and that the other aggravating factors in the guideline judgment did not apply. Although the Crown had submitted the driving was erratic because the respondent drove over a kerb and hit a bollard and a tree, the sentencing judge found that it was not deliberately erratic driving as contemplated by the guideline.
The sentencing judge then went on to say: I reject any notion that the expression "heavily accelerated away from her stationary position", this being a heavy bus, suggests excessive speed. On a consideration of the evidence, I find she accelerated away from her stationary position and through inattention, and with only one hand on the wheel, failed to negotiate the sweeping right-hand bend leading out of the bus bay. Her inattention at that critical time cannot be fairly described as misjudgement. It was necessary to take account of the relevant circumstances with hundreds of children in the vicinity. It was failing to keep a proper lookout on the road ahead, perhaps for a split second, and failing to properly steer the bus. When the bus mounted the kerb she panicked and during the next 13 seconds the only rational conclusion to be drawn is that she mistakenly put her foot on the accelerator instead of the brake and, for this reason, grappled to no avail with the handbrake resulting in catastrophic consequences. This accounts for why her attempts failed to stop the bus by pulling on the handbrake, which she can clearly be seen doing in the CCTV footage, and why no brake marks were left on the ground. All other possible causes of the accident have been excluded. Mechanical examination of the bus by a police mechanical expert found no mechanical defect contributing to the collision. It had been a fine day. There was no medical cause. There was no suggestion of alcohol or drugs impairing the offender's driving. As Simpson J (as she was then) emphasised in R v Khatter [2000] NSWCCA 32 at [31], offences under s 52A are not divided into one or other of two pigeonholes marked "momentary inattention or misjudgement" at the lower end of seriousness and "abandon responsibility" at the higher end. Those are two extremes. There are shades and gradations of moral culpability in different instances of a s 52A offence. The offence, as I have found involved, in circumstances where it was necessary to take into account of hundreds of children in the vicinity, inattention at a critical time and failing to properly steer the bus combined with mismanaging the bus in the agony of the moment involving 13 (sic) seconds that then passed. It would be wrong to characterise the offence having a low level of moral culpability. It would be wrong to characterise it as one in which the offender abandoned responsibility for her own conduct to a material degree. (emphasis added)
His Honour next considered the respondent's subjective circumstances. He noted that since she was first issued in April 2012 with an Australian driving licence she had nine traffic infringements including an incident in 2012 when working as a bus driver she lost control of the bus and hit a tree. His Honour found that whilst her driving record was not good, he took into account as a mitigating factor, notwithstanding those driving infringements, that she was a person of prior good character. His Honour noted that general deterrence was "so important" when sentencing for the kind of offence that the respondent had been charged with.
The sentencing judge noted that the respondent was born in Samoa, she was aged 54 at the time of the offending, she came to Australia in 2011, she was married, her husband was a pastor at the church and she had eight children aged from 15 to 31 years. She had a diploma of nursing and worked at a nursing home from 2012 till 2018 and then worked as a bus driver up to the date of the offence.
She had reported experiencing grief and trauma at various times since she was 20 years old including the death of three of her sisters and five of her brothers.
Her daughter gave evidence that since MC had been killed, her mother had hardly been able to sleep. The daughter said that at various times in the middle of the night she could hear her mother crying and praying.
The respondent had continued working as a nurse since the accident. She had received ongoing psychological therapy from a psychologist, Sam Albassit. Mr Albassit considered that the respondent presented with Complex Post-Traumatic Stress Disorder and a Depressive Disorder. The Crown disputed that the respondent had suffered from these disorders prior to the accident because the only supporting documentation of any mental health issues was in a note of her General Practitioner which postdated the offending.
Mr Albassit gave evidence and was cross-examined. In the course of his evidence he gave an explanation of why he considered the respondent had not consulted medical practitioners about her mental health issues prior to the accident.
The sentencing judge accepted Mr Albassit's opinion that the respondent presented with PTSD and depressive disorder as a result of the incident.
The sentencing judge considered that the respondent had accepted responsibility for her actions and was clearly remorseful and contrite for the death she had caused. He found her prospects of rehabilitation and the unlikelihood of her reoffending to be good although she had limited prospects of reemployment as a driver in any capacity.
His Honour allowed a discount of 25% for the utilitarian value of her pleas of guilty. His Honour took into account the Crown's request that, pursuant to s 30E(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the victim impact statements be taken into account on the basis that the harm done to the family was an aspect of the harm done to the community, and his Honour said he gave it significant weight.
His Honour noted the cases and statistics provided to him. He considered that no other sentence than a term of imprisonment was appropriate, noting that the respondent's senior counsel acknowledged that to be the case.
His Honour considered the length of the sentence should be 2 years but rejected a submission on behalf of the respondent that an intensive correction order would satisfy the paramount consideration of community safety.
His Honour found that there were special circumstances to justify an alteration of the statutory ratio, including assistance with her mental health issues, her age, and it being her first time in custody.

Ground 1: The sentencing judge erred in his assessment of the objective seriousness of the offence.

Submissions

The Crown submitted that the sentencing judge applied the factors referred to in Whyte prescriptively and that resulted in the sentencing judge erring in his assessment of the objective seriousness of the offence. The Crown submitted that in both Whyte and R v Jurisic (1998) 45 NSWLR 209, Spigelman CJ stressed that guideline judgments were intended to be indicative and not prescriptive.
The Crown submitted that in at least three respects the sentencing judge's reasons demonstrate prescriptive adherence to the aggravating factors. That adherence led the sentencing judge to reject the presence of those aggravating factors because his Honour found that they did not manifest in the present case in the sense in which they were contemplated in Jurisic. First, the sentencing judge rejected a submission by the Crown that the speed at which the respondent drove was excessive in the particular circumstances. Secondly, the sentencing judge rejected a submission by the Crown that the respondent's driving was erratic. Thirdly, the sentencing judge rejected a submission by the Crown that the length of the journey to which others were exposed to the risk aggravated the objective seriousness of the offence.
The Crown submitted that while the speed at which the respondent drove might have been unremarkable in other circumstances, it was excessive in circumstances where the respondent, a professional driver, had assumed the responsibility of safely conveying dozens of young passengers home from school, and with properly navigating a heavy vehicle through an area which was densely populated at the time. The heavy acceleration of the bus and the apparent maintenance of that speed until after it struck the victim appears to have directly contributed to her loss of control of the bus.
Further, the respondent had only one hand on the steering wheel, and the shape of the loop road necessitated manipulation of the steering wheel to negotiate safely the right-hand bend. She then continued to drive with only one hand on the steering wheel whilst the bus was in motion despite the fact that it veered dangerously off course. The evidence confirmed that once the bus mounted the kerb the respondent made no attempt to take corrective measures to steer it away from the people in her path and back onto the roadway. Given the nature of the respondent's driving, its erratic character was a factor which increased the objective seriousness of the offence.
In a similar way, the sentencing judge's adherence to the way aggravating factors were contemplated in the guideline judgment appeared to have caused his Honour to dismiss the significance of the length of the journey as "short" in comparison with "prolonged, consistent and deliberate course of very bad driving". Such an approach overlooked the fact that hundreds of persons were exposed to the danger caused by the respondent's driving. Properly considered, the length of the journey, while not prolonged, did not lessen the seriousness of the offence in circumstances where those to whom the respondent posed the greatest risk were in her immediate vicinity.
The Crown submitted that the Judge's finding that it would be wrong to characterise the respondent as having low level of moral culpability, but that it would also be wrong to characterise it as one which the respondent abandoned responsibility for her own conduct to a material degree, was particularly opaque, and offered little insight into how his Honour perceived the seriousness of the offence. The Crown accepted that his Honour was not obliged to assess the objective seriousness of the offence by reference to a notional range.

Consideration

In the Crown's written submissions to the sentencing judge, the Crown submitted that five of the 11 aggravating factors enumerated in Whyte applied to the present case, being the number of people put at risk, the degree of speed, that there was erratic driving, the length of journey during which others were exposed to the risk, and the ignoring of warnings. His Honour then dealt with the submissions made about each of those aggravating factors. Having done so, his Honour concluded: …in circumstances where it was necessary to take into account of hundreds of children in the vicinity, inattention at a critical time and failing to properly steer the bus combined with mismanaging the bus in the agony of the moment involving 13 seconds that then passed. It would be wrong to characterise the offence having a low level of moral culpability. It would be wrong to characterise it as one in which the offender abandoned responsibility for her own conduct to a material degree.
His Honour was, of course, adopting the language of Spigelman CJ in Jurisic at 231, and Whyte at [214] and [228].
On the one hand, the Crown criticised this conclusion as having been too prescriptive a manner in which the sentencing judge applied the guideline judgments, and on the other hand that the determination was too opaque.
In my opinion, his Honour's determination was not opaque. For a start, the offences charged were not offences that had standard non-parole periods, and it is now well established that it is not an error to decline to assess objective seriousness by reference to a notional range for such offences: Dorsett v R [2024] NSWCCA 192 at [151], even for offences carrying a standard non-parole period: DH v R [2022] NSWCCA 200 at [33]. All that is necessary is for the judge to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [29]. On the other hand, it was entirely appropriate for his Honour to adopt the language in Jurisic and Whyte, both guideline judgments.
The sentencing judge first found that the offending lay between the two extremes identified in Jurisic; his Honour quite appropriately referred to what Simpson J (as her Honour then was) said in R v Khattar [2000] NSWCCA 32 at [31], that it was not a binary choice between two extremes. His Honour secondly identified the aggravating factors put forward by the Crown which he had found were relevant to the respondent's driving. He did so by a consideration of how the aggravating factors raised by the Crown related to the manner of the respondent's driving after carefully considering submissions made by both counsel.
I do not accept that the sentencing judge adopted a prescriptive approach to the relevant aggravating factors. His Honour considered each of those aggravating factors, having regard to the discussion in the guideline judgments about those factors. His Honour's determinations on these aggravating factors involved factual findings which were clearly open to him. The Crown's present submissions amount only to a complaint that the sentencing judge did not accept all of the submissions made by the Crown about those aggravating factors.
Even if his Honour approached the matter in a "too prescriptive" way, and I do not consider that he did so, that in itself does not amount to error. In Whyte, Spigelman CJ was suggesting only that the terminology of the second limb of the Jurisic guideline "may be seen to have an undesirably prescriptive tone": at [227]. It was not a statement about the way a sentencing judge should or should not go about a determination of objective seriousness. The sentencing judge's determination about each of the aggravating factors was an aspect of his responsibility discussed in Mulato v R [2006] NSWCCA 282, and see R v Bugmy (No 2) [2014] NSWCCA 322; (2014) 247 A Crim R 556 at [84]. There was no misapplication of principle by the way the sentencing judge dealt with the aggravating factors or, indeed, in his approach to determining the objective seriousness of the offending.
The sentence imposed by the sentencing judge bears out the finding of objective seriousness in that a custodial sentence was imposed (hence, no momentary inattention or misjudgment), but the custodial sentence was one of less than 3 years (hence, no abandonment of responsibility): Whyte at [229].
I would reject this ground.

Ground 2: The sentencing judge erred in finding that the respondent "mistakenly put her foot on the accelerator instead of the brake and grappled to no avail with the handbrake".

Submissions

The Crown identified the italicised portion of the judgment (set out at [23] above) as the subject of challenge. The Crown submitted that the finding in that portion was not open on the evidence in two respects.
First, the finding that the respondent "grappled to no avail with the handbrake" was submitted to be contrary to an earlier finding made by the sentencing judge based on the CCTV, the CCTV itself, and the respondent's own evidence. The Crown identified the Judge's finding that at 2:46:30pm the respondent's right hand appeared to engage the handbrake on her righthand side. The Crown submitted that that occurred, as the footage shows and as the respondent agreed in her evidence, after the bus had mounted the kerb and gone onto the grassed area.
Secondly, the Crown submitted that the finding that the respondent "mistakenly put her foot on the accelerator instead of the brake" was contrary to the account given by the respondent to hospital staff immediately after the offence in which she described having pulled on the handbrake but it did not work. The Crown submitted that, although the respondent had said she had a "full recollection of events" she is not recorded as having said that she attempted to stop the bus by depressing the brake but mistakenly putting her foot on accelerator.
The Crown submitted that the finding was inconsistent with the CCTV footage which shows that the bus travelled at a relatively constant speed from the time at which she closed the door of the bus and pulled out of the bus bay until after it had struck the tree and crossed onto the grassed area where it struck the victim. There was no evidence of a change in speed consistent with the respondent having taken her foot off the accelerator at any point after she pulled out, nor was there any evidence of a rapid increase in speed after the bus had started moving consistent with the respondent having depressed the accelerator in the manner in which one might use a brake to stop a moving vehicle.

Consideration

In the medical notes from Liverpool Health Service, the admissions summary says this: Thank you fore (sic) reviewing Penina who was involved in a bus accident. Limited details in the discharge but from a medical perspective she had no medical event that could explain the accident. She co [complained of] mild headache, left shoulder pain. She has full recollection of the event and states the hand break (sic) did not work. …
In the Sentencing Assessment Report (SAR) dated 24 May 2024, under the heading "Attitudes", the following appears: When reviewing the police facts Ms Lopesi reported to have panicked when the bus hit the curb and thought she pressed on the brake, however, it was the accelerator and stated she was trying to miss students and other objects. When discussing the offences Ms Lopesi claimed that when trying to stop the bus, she also tried to pull the hand brake during this time.
In her evidence in chief at the sentence hearing, the respondent gave this evidence: EXHIBIT C PLAYED TO COURT Q. Madam, did you just see your hand move at, we stopped it at 1 minute and 12 seconds? Just before that did you see what is your right hand move? A. INTERPRETER: Yes. Q. Can you tell his Honour what you were doing or what you were trying to do tat that point? A. INTERPRETER: I was trying to pull the handbrake. Q. Did you manage to pull the handbrake? A. INTERPRETER: I pulled it up but it went back down. Thank you. That exhibit can be returned. Q. Ms Lopesi, you have just been shown a video of the incident and asked some questions about it. Other people have asked you some questions about it as well, haven't they? A. INTERPRETER: Yes. Q. Do you remember trying to pull the handbrake after the bus had mounted the curb (sic) and gone onto that grassed area? A. INTERPRETER: Yes. Q. Do you have any other specific recollection of what occurred up until the point where the bus hit the boy? A. INTERPRETER: I tried to stop the bus with the handbrake. Q. But the bus didn't stop, did it? A. INTERPRETER: No.
In cross-examination, she gave this evidence: Q. Thank you. I'd like to take you now to 15 February 2023 after you were taken to hospital. Can you recall that you told them that you recalled what happened during the course of the incident? A. INTERPRETER: Yes. Q. And can you recall that you said that the handbrake didn't work? A. INTERPRETER: Yes. I told them that I pulled the handbrake but it fell down. Q. You didn't use the footbrake, did you? A. INTERPRETER: I tried to use the footbrake but I wasn't aware it was the accelerator that I was pushing on. Q. You didn't sound the horn, did you? A. INTERPRETER: I panicked. Q. In terms of your foot, it never left the pedal that it had been on, did it? A. INTERPRETER: My foot was - I, I thought my foot was on the brake to stop the bus from moving but it wasn't, it was on the accelerator. Q. But you moved the bus away from the parking area, didn't you? A. INTERPRETER: Yes. Q. And you had your foot on the accelerator when you did that, didn't you? A. INTERPRETER: I used the, the footbrake and the accelerator to move away from the bus bay. Q. It's the case, isn't it, that you only used the accelerator to move away from the bus bay, didn't you? A. INTERPRETER: If I take my foot off of the accelerator, if I take my foot off the accelerator I need to then move it onto the footbrake. Q. But you didn't do that, did you? You left it on the accelerator, didn't you? A. INTERPRETER: I did put my foot, I did put my foot down thinking it was the footbrake but I wasn't aware that it was the accelerator. Q. Well the bus was still moving forward, wasn't it? A. INTERPRETER: Yes. Q. Which would indicated that your foot was still on the throttle or the accelerator, wasn't it? OZEN: I object to that. I object to that.
After some argument, the question was rejected. The Crown did not pursue that line of questioning.
The test to be applied to a challenge to factual findings made by a sentencing judge is whether the findings were open on the evidence before the sentencing judge: R v O'Donoghue (1988) 34 A Crim R 397; AB v R [2014] NSWCCA 339 at [47]-[62]; Ocek v R [2023] NSWCCA 308 at [116].
In order to have a full understanding of the sentencing judge's findings I have viewed the CCTV footage a number of times. In relation to the sentencing judge's finding that the respondent "grappled to no avail with the handbrake", it must first be observed that the handbrake itself is not visible on the CCTV footage. It is accepted that it was on the righthand side of the driver's seat. The CCTV footage shows that the respondent's right hand was not on the steering wheel but down to the right of her seat for the whole of the time the bus was moving. At 2:46:30 (one minute and 12 seconds into the footage) the respondent attempts to pull something towards her from the righthand side.
In addition, the respondent gave evidence in chief that she tried to stop the bus with the handbrake. That evidence was not challenged by the Crown in cross-examination. Rather, the focus of the cross-examination was on whether the respondent had attempted to use the footbrake or not.
What is undoubted is that, whatever the respondent was doing or attempting to do with the handbrake, it was to no avail. The evidence of the CCTV footage and the respondent's evidence provided a good basis for the sentencing judge's conclusion that she grappled to no avail with the handbrake. The finding was clearly open to his Honour.
With regard to the finding that the respondent mistakenly put her foot on the brake instead of the accelerator, what appears in the hospital records certainly says nothing about that matter. However, it cannot be concluded from the note that "she has full recollection of the event", that her full recollection was either given to the person making the note or that that person recorded it. The detail of what happened would not be expected to be recorded in a hospital note when the purpose of the examination of the respondent was an examination of her in medical and forensic terms. What is recorded, that "the handbrake did not work", is at least consistent with her belief based on the CCTV footage including that the bus did not stop when she appeared to do something with the handbrake.
It may be accepted that the first recording of an assertion that the respondent pressed on the brake but hit the accelerator instead was in the SAR about 15 months after the accident. It was also the evidence the respondent gave and was challenged about at the sentence hearing.
No submission was made by the Crown to the sentencing judge that the evidence of attempting to depress the footbrake was first disclosed considerably after the event. Rather, the focus of the submissions in that regard was that her account should not be accepted because of what was apparent on the CCTV footage of the bus continuing forward with no attempt to brake as demonstrated by the absence of brake marks and the impetus the bus had to mount the kerb and travel forward.
Notwithstanding the challenge in cross-examination to that evidence of the respondent, which was ultimately not pursued because of the disallowance of one question, it was certainly open to the sentencing judge to accept the respondent's evidence that she mistakenly placed her foot on the accelerator rather than the footbrake.
Further, it cannot be determined from a viewing of the CCTV footage that the bus maintained a steady speed from the time it left the kerb until the time it stopped.
In my opinion, it was open to the sentencing judge to accept the respondent's evidence and find that she mistakenly put her foot on the accelerator instead of the brake.
I would reject this ground.

Ground 3: The sentence pronounced is manifestly inadequate.

Submissions

The Crown submitted that the specific errors identified in grounds 1 and 2 contributed to a manifestly inadequate sentence, but the Crown also submitted that the sentence was manifestly inadequate independently of grounds 1 and 2 and does not depend on the Court upholding either or both of those grounds.
The Crown submitted that the offence was a grave example of an offence contrary to s 52A(1) in that the respondent assumed the solemn responsibility that comes with being a professional driver charged with conveying a large number of children home from school and with properly navigating a heavy vehicle through an area densely populated with other children. The Crown submitted that after the bus mounted the kerb the respondent made no real attempt to take corrective measures to steer the bus back onto the roadway, and she continued to navigate the vehicle with one hand.
The Crown submitted that notwithstanding the factual findings made in relation to the mistaken use of the accelerator and the attempt to use the hand brake, the Judge also found that the respondent accelerated away from a stationary position and that it was "through inattention", "failing to keep a proper lookout on the road ahead", and "failing to properly steer the bus" that she also failed to negotiate sweeping right-hand bend. The Crown submitted that this series of failures increased the objective seriousness of the offence.
The Crown submitted that whilst his Honour found that only two of the aggravating factors identified in Whyte were present, each was significant. That is because of the large number of bystanders in addition to the 31 students who were passengers on the bus, and the fact that the respondent ignored the danger or "warning" that was presented by there being so many school children in the vicinity.
The Crown submitted that general deterrence and denunciation were both important features of the sentencing task for this type of offence and must be reflected in the ultimate sentence imposed given the charge of a motor vehicle is one of great responsibility.
The Crown submitted that the respondent's subjective case was relatively unremarkable particularly in sentencing for offences of this kind. Many of the most notable aspects of her subjective case, the finding that she was genuinely remorseful and of good character, are features of the "frequently recurring case" contemplated by the guideline judgment.
The Crown submitted that the respondent's mental health issues were not such as to warrant any significant weight in the determination of an appropriate sentence. The respondent was not found to have been suffering from any mental health issues at the time of the subject offence. At 54 years of age she was not a young offender and was not entitled to the mitigation that might otherwise have flowed from such a factor.
The Crown submitted that the inadequacy of the sentence imposed was further compounded by the extent of the finding of special circumstances by which the sentencing judge reduced the statutory ratio to 50% on account of the respondent's mental health issues, her age and this being her first time in custody. The Crown said that whilst those factors might have justified a variation in the statutory ratio they did not justify the extent of the departure from the statutory ratio that his Honour afforded. The result was an overall non-parole period that failed to reflect the seriousness of the offence and both specific and general deterrence.

Consideration

The principles concerning whether a sentence is manifestly inadequate are well known. It is helpful, however, to refer to the useful summary in R v Sara [2020] NSWCCA 119 where Harrison J (Bathurst CJ and Hoeben CJ at CL agreeing) said: [97] The assertion that a sentence is manifestly inadequate is an assertion that the sentence is "unreasonable or plainly unjust", as that expression is used in House v The King: see Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]. In other words, the Court must be satisfied that the non-parole periods and total sentences imposed were outside the range of sentences that could have been imposed: see R v Mereb; R v Younan [2014] NSWCCA 149 at [32]. [98] However, appellate intervention will not be justified simply because the result arrived at below is markedly different from other sentences imposed in other cases. The Court must be driven to conclude that there must have been some misapplication of principle: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [58]-[59], [75]-[76]; The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 at [28]. [99] In assessing whether the sentence imposed was "unreasonable or plainly unjust", the following principles apply: (1) Sentencing is a discretionary judgment and there is no single correct sentence: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [24]. (2) The Court of Criminal Appeal must not substitute its own opinion merely because it would have exercised the sentencing discretion differently to the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]. (3) Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Markarian at [25]; Hili at [58]. (4) The weight to be given to the various factors to be taken into account (including the evidence and various purposes of sentencing) is a matter for the sentencing judge: Bugmy at [24], [99]. (5) Although the Court of Criminal Appeal is not bound by the sentencing judge's assessment of objective seriousness, the Court should be very slow to form its own view: CMB at [78]; Mulato v R [2006] NSWCCA 282 at [37]. (6) Whether or not manifest error has occurred is not "fundamentally intuitive". What reveals manifest inadequacy is a consideration of all of the matters that are relevant to fixing the sentence: Hili at [60]. (7) Reviewing a history of sentencing can establish a range of sentences that have in fact been imposed. However, that history does not establish either that (i) that range is the correct range; or (ii) that the upper or lower limits to the range are the correct limits. They are only a yardstick against which to examine a proposed sentence: Hili at [54] approving Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [303]-[304].
Since I have concluded that no error is demonstrated in relation to the challenged factual findings by the sentencing judge and his Honour's assessment of objective seriousness, the question of manifest inadequacy must be dealt with on the basis that there has been some misapplication of principle even though where and how is not apparent from the reasons of the sentencing judge, or on the basis that the sentence imposed is so far outside the range of sentences available that there must have been error.
It should first be observed that the sentencing judge's finding of objective seriousness was such that the sentence fell within the range of sentences contemplated by the guideline judgment in Whyte. While that does not mean that the sentence is unassailable as being manifestly inadequate, it points towards it being a sentence that is not so far outside the range of sentences that there must have been error. For example, although a judge might find that an offender's moral culpability was not high in respect of the offence for which a sentence was being imposed, that offender's criminal record and/or the offender's driving record, might have been such as to warrant a sentence that fell outside the guideline judgment, accepting always that it is a guideline only and not a prescription. However, there is nothing in the respondent's subjective case that suggests a sentence within the guideline judgment was not appropriate.
In reaching his assessment of the objective seriousness of the offending, the shortness of time within which the offending occurred was a matter of some significance. The whole event took place within 18 seconds (see [11]-[14] above), and included, as the sentencing judge found, attempts by the respondent, albeit in vain, to stop the bus. Drugs and alcohol were not involved. I have already indicated that the sentencing judge made no error in his assessment of objective seriousness.
The sentencing judge accorded the respondent a discount of 25% for her early plea. In Whyte the "frequently recurring case' referred to at [204] was one that involved a plea of limited utilitarian value. The plea in the present case cannot be described as one of limited utilitarian value, with the result that the offending more clearly falls within the sentence range in Whyte that does not involve an offender with a high level of moral culpability.
Secondly, whilst it could not be said that the respondent had an overwhelming subjective case, her subjective case was nevertheless a reasonably strong one. That included his Honour's acceptance that the respondent was clearly remorseful and contrite for the death she had caused and his Honour's acceptance that her prospects of rehabilitation and the unlikelihood of her re-offending were good. His Honour found also that the respondent was a person of prior good character but noted that less weight is given to that matter than might otherwise be the case for other offences.
Thirdly, his Honour expressly noted that general deterrence was "so important" when sentencing for this kind of offence.
Fourthly, his Honour accepted the psychologist's opinion that the respondent presented with PTSD and a depressive disorder as a result of the accident. In those circumstances, it was entirely appropriate that his Honour found special circumstances because of the need for her to obtain assistance with her mental health issues, and also because of her age and it being her first time in custody. What alteration to the statutory ratio should be provided is ultimately a matter of discretion for a sentencing judge: R v Cramp [2004] NSWCCA 264 at [34]; Trad v R [2009] NSWCCA 56; (2009) 194 A Crim R 20 at [33]; MD v R [2015] NSWCCA 37 at [40], and this Court will be slow to intervene: Caristo v R [2011] NSWCCA 7 at [28]-[29], [31]. The limitation on that discretion is that any non-parole period that is imposed should not be a sentence that is disproportionate to the seriousness of the offending: Ho v R [2013] NSWCCA 174 at [33]; R v Lulham [2016] NSWCCA 287; (2016) 263 A Crim R 287 at [55].
Although the reduction of the statutory ratio to 50% might be regarded as generous, it was open to his Honour on the evidence before him to reach that decision. By reason of that evidence, it cannot be said that the non-parole period reached was manifestly inadequate: Ho at [33].
The following remarks of Yehia J in Bresnahan v R [2022] NSWCCA 288; (2022) 305 A Crim R 21 at [150] are apposite, particularly in relation to this type of offence, which so frequently involves people who would otherwise never come before the criminal courts: It must be remembered that imprisonment is uniquely punitive because it involves the complete loss of liberty, loss of personal autonomy, loss of privacy, forced association, restriction of movement, and exposure to violence and intimidation. In Mainwaring v R [2009] NSWCCA 207, Harrison J (at [71]) made an observation with which I respectfully agree: "Any period of imprisonment must be understood for what it is: onerous, unpleasant, oppressive and burdensome. It is, as it should be, the last available punitive resort in any civilised system of criminal justice. Public discussions about the need to deter crime by the imposition of heavier sentences are not always obviously, or at least apparently, informed by an appreciation of the significance of full-time incarceration upon men and women who receive such sentences. In contrast, I have no doubt that the learned trial judge was acutely aware of such matters, as his careful disposition of the case reveals."
In my opinion, the sentencing judge gave proper consideration to all of the matters to be taken into account in the sentencing process. There has been no misapplication of principle, and it cannot be said that the sentence lies so far outside the range of appropriate sentences that there must have been error.
I would reject this ground.

Conclusion

I propose the following order: 1. Dismiss the appeal.
RIGG J: I agree with Davies J.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 February 2025

Crimes Act 1900(NSW)s 52A

Road Rules 2014(NSW)s 287

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