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Court of Criminal Appeal 26 February 2025

R v Lopesi

[2025] NSWCCA 15

HomicideTraffic & driving
CRIME APPEALS APPEAL AGAINST SENTENCE BY CROWN AGAINST INADEQUACY APPEALS APPEAL AGAINST SENTENCE

Citation: R v Lopesi [2025] NSWCCA 15
Court: NSW Court of Criminal Appeal
Date: 26 February 2025
Judges: Harrison CJ at CL, Davies J (principal judgment), Rigg J

Background

The respondent, a 54-year-old bus driver employed to run public bus routes in Sydney's south-west, was collecting school students from Macarthur Anglican School at Cobbitty on 15 February 2023. After students had boarded, she drove away from the designated bus bay, heavily accelerated, and failed to negotiate a right-hand bend. The bus mounted a kerb and continued forward into a concrete paved area where students were gathered.

The bus struck a tree and then hit a 14-year-old student standing nearby, forcing him underneath the front of the vehicle. The front nearside wheel ran over the lower torso of the boy. The bus continued forward, struck a lamp post, and came to rest approximately 30 metres from the tree. The student was transported to Liverpool Hospital but died from his injuries. A forensic mechanical examination found no mechanical defect contributed to the collision.

The respondent pleaded guilty in the Local Court to dangerous driving occasioning death under s 52A(1)(c) of the Crimes Act 1900 (NSW) and to failing to give particulars to police under the Road Rules 2014 (NSW). The sentencing judge imposed a total term of two years' imprisonment with a non-parole period of one year, applying a 25% discount for the guilty pleas and finding special circumstances based on the respondent's mental health, age, and status as a first-time prisoner. The Crown appealed under s 5D of the Criminal Appeal Act 1912 (NSW), arguing the sentence was inadequate.

  • Whether the sentencing judge erred in assessing the objective seriousness of the offence by applying an overly prescriptive approach to aggravating factors
  • Whether the sentencing judge erred in finding that the respondent had mistakenly pressed the accelerator instead of the brake and had grappled with the handbrake to no avail
  • Whether the overall sentence of two years' imprisonment with a one-year non-parole period was manifestly inadequate

Decision

Ground 1: Objective seriousness. The Court rejected the Crown's submission that the sentencing judge had taken a prescriptive or formulaic approach to the aggravating factors drawn from the guideline judgments. His Honour had considered each factor on its own terms and made factual findings that were open to him on the evidence. The Court found no misapplication of principle in how objective seriousness was assessed, and noted that the custodial term imposed was consistent with that assessment.

Ground 2: Factual finding about the accelerator and handbrake. The Court held it was plainly open to the sentencing judge to accept the respondent's account. Both the CCTV footage and her evidence at the sentence hearing provided a sound basis for the conclusion that she mistakenly pressed the accelerator rather than the brake, and that she made an unsuccessful attempt to engage the handbrake. No error was established in that finding.

Ground 3: Manifest inadequacy. The Court found the sentence fell within the range contemplated by the guideline judgment in R v Whyte (2002) 55 NSWLR 252, which covers offending not involving a high level of moral culpability. The respondent's subjective case was described as reasonably strong: she was clearly remorseful, of prior good character, and had good prospects of rehabilitation. The finding of special circumstances was also upheld as a discretionary matter properly within the sentencing judge's remit, given the respondent's mental health issues, age, and first-time experience of custody. The Court quoted passages from Bresnahan v R and Mainwaring v R to underscore that a term of imprisonment remains a uniquely punitive measure whose gravity must not be underestimated. It could not be said the sentence lay so far outside the appropriate range as to indicate error.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • In dismissing the Crown's appeal, the Court of Criminal Appeal confirmed that a sentencing judge's factual findings on objective seriousness will not be disturbed on appeal absent a demonstrated misapplication of principle, even in a case involving a death.
  • Where CCTV footage and the offender's own evidence are consistent with each other, that combination can provide a sufficient basis for a sentencing judge to accept an explanation for the offender's conduct, even when the Crown disputes the finding.
  • A sentence for dangerous driving occasioning death that does not involve a high level of moral culpability may appropriately fall within the lower range identified in the guideline judgment R v Whyte, when combined with a strong subjective case including remorse, good character, and rehabilitation prospects.
  • Finding of special circumstances to vary the statutory ratio of non-parole period to total sentence is a matter of discretion for the sentencing judge; the Court of Criminal Appeal will be slow to intervene unless the resulting non-parole period is disproportionate to the seriousness of the offending.
  • The decision reaffirms the Court's recognition, drawing on Bresnahan v R, that imprisonment represents a uniquely severe deprivation of liberty and that this must be weighed appropriately in the sentencing exercise, including in cases where the offender would not ordinarily come before the criminal courts.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 30E
- Criminal Appeal Act 1912 (NSW), s 5D
- Road Rules 2014 (NSW), s 287

Cases
- R v Jurisic (1998) 45 NSWLR 209
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 (guideline judgment, principal reference)
- Mulato v R [2006] NSWCCA 282
- R v Cramp [2004] NSWCCA 264
- Caristo v R [2011] NSWCCA 7
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Ho v R [2013] NSWCCA 174
- AB v R [2014] NSWCCA 339
- R v Bugmy (No 2) [2014] NSWCCA 322; (2014) 247 A Crim R 556
- MD v R [2015] NSWCCA 37
- R v Lulham [2016] NSWCCA 287; (2016) 263 A Crim R 287
- R v Sara [2020] NSWCCA 119
- DH v R [2022] NSWCCA 200
- Bresnahan v R [2022] NSWCCA 288; (2022) 305 A Crim R 21
- Ocek v R [2023] NSWCCA 308
- Dorsett v R [2024] NSWCCA 192
- Trad v R [2009] NSWCCA 56; (2009) 194 A Crim R 20
- R v O'Donoghue (1988) 34 A Crim R 397
- R v Khattar [2000] NSWCCA 32