Harrison CJ at CL at [1] Davies J at [2] Rigg J at [92]
Decision:
(1) Dismiss the appeal.
Catchwords:
CRIME – appeals – appeal against sentence – by Crown against inadequacy – where the respondent pleaded guilty to an offence of dangerous driving occasioning death – where the bus driven by the respondent collided with a kerb and continued forward in an area with school children – where the bus collided with a tree and struck a student before coming to a standstill – whether the sentencing judge erred in his assessment of objective seriousness – where there was no misapplication of principle – where a custodial sentence was appropriate – where the sentence imposed bears out the finding of objective seriousness
CRIME – appeals – appeal against sentence – by Crown against inadequacy – whether 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” – where CCTV footage and the respondent’s evidence meant the finding was open to the sentencing judge
CRIME – appeals – appeal against sentence – by Crown against inadequacy – whether the sentence pronounced is manifestly inadequate – where the sentence fell within the range of sentences contemplated in the guideline judgment – where nothing suggested a sentence within the guideline judgment was not appropriate – where the offender did not have a high level of moral culpability – where the respondent’s subjective case was strong – where there was a finding of special circumstances – where it cannot be said that the sentence lies so far outside the range of appropriate sentences that there must have been an error – appeal dismissed
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v Lopesi [2025] NSWCCA 15
Case
[2025] NSWCCA 15
Decision Date
CaseChat Overview and Summary
The appeal before the Court was brought by the Crown against the sentence imposed on the respondent, Lopesi, who had pleaded guilty to dangerous driving occasioning death. The incident involved the bus driven by Lopesi colliding with a kerb, continuing forward into an area with school children, before colliding with a tree and striking a student. Lopesi’s appeal against the sentence contested the adequacy of the punishment meted out, focusing on whether the sentencing judge had erred in various respects.
The central legal issues before the Court were whether the sentencing judge had misapplied the principles of sentencing in determining the objective seriousness of the offence and whether the sentence imposed was manifestly inadequate. The Crown argued that the sentencing judge's finding that Lopesi mistakenly pressed the accelerator instead of the brake was not supported by the evidence, particularly given the CCTV footage and Lopesi's own testimony. Furthermore, the Crown contended that the sentence fell within the range of sentences contemplated in the guideline judgment, but it was still manifestly inadequate.
The Court found that there was no misapplication of the principles of sentencing by the judge. The evidence, including CCTV footage and Lopesi's account, was sufficient to support the judge's finding about the circumstances of the incident. The Court also determined that the sentence imposed was appropriate and within the range of sentences suggested by the guideline judgment. The offender did not exhibit a high level of moral culpability, and the respondent's subjective circumstances were deemed significant. The Court concluded that the sentence did not lie outside the range of appropriate sentences to the extent that an error must have occurred.
The appeal was dismissed by the Court, affirming the sentence imposed on Lopesi as appropriate and within the bounds of judicial discretion.