Button v R

THE COURT: The applicant, Brett Button, pleaded guilty in the Local Court on 8 May 2024 to 35 separate offences arising out of a single incident – an horrendous crash on 11 June 2023 when he was driving a bus that overturned on a roundabout at Greta in the Hunter Valley. The bus was carrying guests to Singleton after a wedding in the Hunter Valley. No other vehicle was involved. There is no doubt that the crash was caused by excessive speed through the roundabout.

Ten passengers were killed and the remaining 25 passengers were injured, nine grievously. Mr Button suffered a minor laceration to a finger. Given that all the passengers had attended a wedding that day, a number of them were related to, or knew, each other. The consequences for their families and the communities of which the deceased and severely injured formed part were devastating.

Following a plea agreement under which charges of manslaughter were withdrawn, Mr Button pleaded guilty to the following offences: 10 counts under s 52A(1) of the Crimes Act 1900 (NSW) (Crimes Act) of occasioning death through dangerous driving; 9 counts under s 52A(3) of the Crimes Act of occasioning grievous bodily harm through dangerous driving; and 16 counts under s 53 of the Crimes Act (which were before the Court pursuant to a certificate under s 166 of the Criminal Procedure Act 1986 (NSW)), in respect of actual bodily harm caused by his wanton driving. He received a discount of 25% for his pleas of guilty.

On 11 September 2024, the sentencing judge, Ellis DCJ, imposed an aggregate sentence of 32 years with a non-parole period of 24 years. Mr Button will be eligible for release to parole on 8 May 2048.

The applicable maximum sentences in respect of the offences to which Mr Button pleaded guilty are: in respect of the s 52A(1) offences – 10 years; in respect of the s 52A(3) offences – 7 years; and in respect of the s 53 offences – 2 years. There are no applicable standard non-parole periods. The indicative sentences were stated by his Honour as follows: in respect of the s 52A(1) offences – 4 years 6 months; in respect of the s 52A(3) offences – indicative sentences varying from 2 years 7 months (4 counts) to 2 years 3 months (3 counts) to 1 year 10 months (2 counts); and in respect of the s 53 offences – indicative sentences varying between 12 months (7 offences) and 10 months (9 offences). A rough calculation of the total period of the indicative sentences if wholly accumulated would be over 78 years.

Mr Button seeks leave, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), to appeal against the aggregate sentence imposed on him upon the following grounds:

For the following reasons, leave to appeal should be granted but the appeal should be dismissed.

The sentencing judge was provided with a Statement of Agreed Facts, which had been signed by Mr Button at the time he pleaded guilty (Ex A4). The following summary of the factual background is drawn from that Statement of Agreed Facts (numbers in square brackets indicate the relevant paragraph from the Agreed Facts). Updated medical records were tendered which documented the subsequent progress of the injuries to the nine victims who sustained grievous bodily harm (Ex A12-20). Victim impact statements were read from survivors, next of kin of the deceased and family members of both survivors and the deceased. There are suppression and non-disclosure orders in force in respect of those victim impact statements.

Particularly given ground 3, which contends that the aggregate sentence was manifestly excessive, it is necessary to set out in some detail what occurred on and leading up to the night of the crash.

The groom had made arrangements through Linq Buslines for a coach to transport guests to and from the wedding at Wandin Estate ([1]). Mr Button was the driver of the bus to and from the wedding. He collected passengers from the Royal Hotel in Singleton at around 2.10pm ([2]). There were fewer than 57 passengers aboard the bus ([2]). The bus arrived at the venue at around 3pm ([2]). On the way to the wedding, Mr Button joined in conversation with passengers Mr El Moussalli and Mr Dinakis at the front of the bus. He also engaged in banter with and was generally making jokes with the passengers at the front of the bus ([11]). At times during the journey, Mr Button braked harder than necessary or went too fast around corners where the road was winding and narrow ([12]).

On arrival at Wandin Estate, Mr Button stopped at the reception venue to allow some passengers to use the bathroom before driving them to where the wedding ceremony was to be held ([13]). On the way, Mr Button fiddled with the bus doors and left them open, was jovial and made jokes about doing “donuts”. At one point, he commented that “This is nothing to what I can drive, I drive a lot bigger buses than this” ([14]).

Mr Button remained at the venue during the evening. Around 11pm, he had a conversation with an employee at the wedding venue, who observed that Mr Button appeared tired, with his speech being quiet and slow ([17]).

At around 11:17pm, Mr Button left Wandin Estate for Singleton, driving the bus with 35 passengers on board ([5]-[6]). There were different accounts from surviving passengers as to the weather at the time of the crash, some reporting heavy fog and others reporting no fog and clear visibility ([23]). Ms Sury, a wedding guest who followed the bus onto Lovedale Road (before she turned left onto Camp Road), recalled that the visibility was good on the drive ([20]). CCTV footage obtained from nearby premises, including an Ampol service station at Greta (three minutes’ drive from the roundabout), showed some light fog. The heavy fog is increasingly apparent following the crash ([23]).

During the journey, Mr El Moussalli and Ms Sandoval, who were sitting immediately behind Mr Button (and who had not been wearing seatbelts at the start of the journey) put their seatbelts on after Mr Button had been driving for a few minutes because they felt uncomfortable. Mr El Moussalli felt that Mr Button was going too fast, particularly for backroads. Ms Cox, another passenger, sitting on the right hand side of the bus, also put on her seatbelt because she felt the bus travelling quickly and did not feel safe ([24]).

During the trip, Mr Button turned on music and fostered a party atmosphere in the bus, engaging in banter with the wedding guests ([26]). At one stage he said, “if you liked that corner, you’re going to like this one”. At another point, one passenger, Mr Dinakis, said “this guy’s going a bit fast, he’s gone crazy” and Mr Button responded, saying “oh it’s nothing” and described times when he had driven fast and had driven a four-wheel drive on the sand dunes. Mr Button did not change his driving after Mr Dinakis’ comment. ([26]).

As the bus passed the Ampol service station at Greta, a couple of minutes before the roundabout, a car overtook it at speed. Mr Button appeared annoyed and said something like “fuck, fuck this”. A police officer who was at the service station observed the bus and the car go past but did not consider the speed of the bus or the car to be excessive at that point ([27]).

Shortly after 11:30pm, having travelled approximately 12km from Wandin Estate, Mr Button’s bus entered a roundabout at Greta from the north on Wine Country Drive, in order to take the western off-ramp onto the Hunter Expressway ([6]-[7]).

As the bus approached the roundabout, a couple of minutes after passing the Ampol service station at Greta ([27]), Mr Button said “This next part’s going to be fun” and he then accelerated ([28]). As the bus entered the roundabout it began to tilt towards the left ([7]). One passenger, Mr Junkeer, who was sitting in the front row on the left side of the bus with his wife, said “he’s coming in hot” and his wife replied “he’s going too fast”. Ms Hooper, another passenger, said to her partner, Mr Burns, that she was scared and he held her down on his lap. As the bus travelled too quickly through the roundabout, Mr Junkeer said “mate” to Mr Button and Mr Burns said “slow down” (see [28]-[29]).

As to the speed of the bus at relevant points of the journey, speed data was captured by an on-board Consat Telematics Solutions Connected Bus Program system ([32]). Gavin Lennon, a collision reconstruction expert, identified the speed of the bus as being largely compliant with the speed zoning along the journey to the collision site, the maximum speed recorded for the journey being 96km/h on the New England Highway, within a 90km/h speed zone ([32]). Immediately before reaching the entry to the roundabout, the speed was recorded as 52km/h. At a later point on the roundabout, it was recorded as 56.48km/h ([32]).

Mr Lennon calculated the “tipping threshold” (the speed at which rollover of the bus was likely) to be 31km/h at the entry to the roundabout. His opinion was that, to reduce the speed from 52km/h so as to enter the roundabout below that threshold, would have required a “moderate to high level braking rate for a bus”, falling within the “aggressive” driver category, and that, for the bus to have then reached 56.48km/h on the roundabout, Mr Button must have then accelerated at a level falling at the higher end of “normal driving” towards the “aggressive” level of driving ([33]).

Mr Lennon’s opinion, taking into account the location (a roundabout as opposed to a straight section of road), was that the braking and acceleration rates applied by Mr Button were excessive, unnecessary and aggressive. He considered that it should have been apparent to the driver that a loss of control was imminent ([33]).

The Statement of Agreed Facts includes a diagram indicating the safe speeds calculated by Mr Lennon for different points on the roundabout and the bus’ probable speed where relevant ([33]; Ex A5a). That diagram (Annexure B to these reasons) identifies the following four points:

Mr Button’s speed was recorded as 56.48km/h between the second and third of those four points. As already noted, it was an agreed fact that as the bus entered the roundabout it began to tilt to the left ([7]). The bus tipped and skidded across the roadway on its left side, coming to a rest against an Armco railing ([6]-[7]).

Mr Lennon calculated the sideways force coefficient of the road and said that the skid resistance of the roadway was not a contributing factor to the collision ([34]). (A crime scene officer with the engineering investigations unit conducted a mechanical investigation of the bus on 13 June 2023 and identified no mechanical failures or defects with the vehicle that may have been contributing factors towards the collision ([84]).)

The first people to arrive at the scene were the four wedding guests who had been travelling separately by the car driven by Ms Sury. As noted above, Ms Sury’s car had followed the bus onto Lovedale Road but when she turned onto Camp Road the bus continued on Lovedale Road ([19]-[20]). After a short stop in Nelson Street, Greta (where Ms Sury saw the bus in the distance go past at the New England Highway intersection), she next saw it when she turned left onto the New England Highway. Ms Sury could see the bus around 200m ahead but by the time she entered the 80km/h zone where the road became a two lane highway she could no longer see it ([21]).

The first notification to emergency services after the crash was made from Mr Burns’ phone at 23:32:26. At 11:33pm, Ms Dickson, one of the passengers in Ms Sury’s car, made contact with NSW Ambulance ([30]). The four wedding guests travelling in Ms Sury’s car rendered assistance while waiting for emergency services to arrive. Two of the men providing assistance (Mr Ellis-Cluff and Mr Atie) helped people out of the front roof manhole as the bus was on its side and ripped aside the front windscreen to enter the bus ([36]). Some of the injured asked them to find their loved ones. It was clear that a number of people inside the bus were dead. Mr Button was seen standing and staring, apparently in shock ([36]).

The scene was one of chaos, as a number of passengers attempted to locate their loved ones and to assist others with injuries to get free of the bus. Surviving passengers described seeing “dead bodies and body parts all around” and “horrific images of what was on the ground” ([35]-[38]). One of the first police officers to attend the scene described the western side of the bus as a “warzone”, with a number of passengers moaning in pain and others clearly trapped under the bus and the deceased ([41]).

At 11:42pm, Mr Button contacted his manager and said “I have had an accident, I fucked up. I have rolled a bus on Wine Country Drive”. Asked if everyone was okay, he said “no, there are fatalities and emergency services are on their way”. Mr Button’s manager recalls that he remained calm and level during this conversation and said that his tone and response seemed to have no emotion ([39]).

Messages about the crash were broadcast on police radio from about 11:36pm. Senior Constable Dennis arrived at the scene soon afterwards and was followed by other police officers who assisted some of the surviving passengers out of the bus. Mr Button identified himself as the driver and was assisted out of the front of the bus ([40]). The first ambulance arrived at 11:40pm and was followed by others. Intensive care paramedics provided assistance to Ms Bulman, who was in a critical condition ([42]).

At some time after 11:56pm, while at the crash scene, Mr Button told Senior Constable Benjamin Goodridge, unprompted, that he did not know how the accident had happened and said that he had “driven around here hundreds of times”, that “I just can’t figure it out. … You can’t tip those buses, it doesn’t make sense. They weren’t all on one side or anything. I guess I was just going too fast” ([44]).

Mr Button was taken to Singleton District Hospital shortly after midnight. While at hospital waiting for forensic samples to be taken, he told other police officers that he was driving with his cruise control on as he was coming down the hill, that he turned it off and sped up going down the hill, and he did not accelerate going back up the hill so he would slow down. He said that he did not brake going into the roundabout “because I was already at a slow enough speed, I have driven this road plenty of times” ([46]).

At 4:10am, Mr Button told Senior Constable Brien that on approaching the roundabout he “clicked the cruise control off”, slowed down and checked the area and then, as he has done previously, turned into the corner; that it was a sharp corner and that he was turning right, aiming the bus at the corner. He said that “I don’t think I’d even started to accelerate, I think I was still coasting, and I felt it understeer it was [sic] and then it just fell over. It literally just tipped on its side and skidded across the road”. Mr Button said that he thought he slowed to “like 30 or something” and that he did not feel he was going fast but that it was a tight corner. He said he had taken the roundabout “heaps of times” before and had never had an issue previously ([48]).

It was an agreed fact that, at the time of the crash, Mr Button was driving in a manner dangerous to other persons in that he ([9]):

As noted above, ten passengers died as a result of the crash (nine at the scene and one in hospital).

Nine passengers were identified as dead by paramedics at the scene at 12:18am. Those passengers were:

The tenth passenger who died was Darcy Bulman, aged 30, who had been sitting near the front of the bus with her partner, Nikiforos Dinakis (who suffered grievous bodily harm in the crash). Ms Bulman suffered severe traumatic injuries to the left side of her chest. She was transported by ambulance, intubated, to John Hunter Hospital, where her condition deteriorated and she later died after her bleeding could not be controlled ([52]).

The Agreed Facts included a diagram (a copy of which is attached to these reasons as Annexure C), indicating where each victim was seated. Colour-coding has been added to the diagram to indicate the extent of the injuries suffered by each victim: red indicates that the victim died; orange indicates that the victim suffered grievous bodily harm; yellow indicates that the victim sustained bodily harm.

Nine passengers suffered grievous bodily harm ([53]-[67]); Ex A12-A20. In circumstances where there is a challenge to the term of the aggregate sentence, it is important to note in some detail the extent of the injuries suffered by these victims and the ongoing consequences of the crash. In summary, those injuries involved significant orthopaedic issues that required surgery and, more than 12 months after the bus crash, many survivors required ongoing treatment and were left with a restricted ability to work and a need for ongoing psychological support.

Sharyn Junkeer, aged 44, lost consciousness at the scene. She was transported to John Hunter Hospital, where her injuries were recorded as left thigh degloving, right knee penetrating injury, L5 transverse process fracture, bilateral pubic rami fractures, right sacral ala fracture and S1 fracture ([53]). Ms Junkeer’s left thigh wound required split thickness skin grafts, and she required bilateral lower leg wound dressings. She also required an open reduction, internal fixation of her pelvic fractures. Ms Junkeer’s injuries required repair to her index and middle fingers. She also required repair of multiple forehead and scalp lacerations ([54]). Ms Junkeer remained in hospital until 1 August 2023. After that time, she underwent significant treatment from a team of specialists including specialists in hand therapy, physiotherapy, osteopathy, scar management, plastic surgery, orthopaedic surgery, rehabilitation physician, and ophthalmology.

Ms Junkeer suffered acute stress symptoms and post traumatic amnesia, which was improving by 14 June 2023 ([54]). At the time of sentence, Ms Junkeer was receiving ongoing trauma counselling from specialist psychologists. While able to return to work on a greatly reduced basis (approximately 7½ hours a week on a two-day cycle), Ms Junkeer had ongoing issues such as chronic pain from her left thigh injury and was seeing a plastic surgeon for expected scar revision surgery in the near future.

Emma Healey (aged 43) was found on arrival at John Hunter Hospital to have: a subarachnoid haemorrhage, a nasal bone fracture, a lip laceration, a left segmental humerus fracture and a left 5th metacarpal facture. A large scalp laceration and left arm and hand lacerations were also noted. ([55]). Ms Healey’s subarachnoid haemorrhage was managed conservatively. She required open reduction, internal fixations for both the left ulna and 5th metacarpal fractures and an internal fixation of the fracture of her humerus. ([56]).

After her initial surgery, which required internal fixations of the left ulna, 5th metacarpal and humerus, Ms Healey underwent a number of other facial and orthopaedic surgeries. In respect of the extensive injuries to her left upper body, Ms Healey underwent a revision surgery in late June 2023 to fix the original plating of the left humerus which had failed. In February 2024, she underwent further surgery to her left shoulder and hand. In May 2024, she had more surgery to her left arm to remove the humeral plates. At the time of sentence, she continued to require extensive physiotherapy, particularly in respect of her left arm and hand.

Dylan Burns (aged 30) had the following injuries on arrival at John Hunter Hospital: multiple pelvic fractures, multiple fractures of his cervical spine (left C7-11 transverse process fractures), multiple fractures of his thoracic spine, spleen injury (Grade 3 splenic laceration), multiple rib fractures (left 3-11 ribs), a traumatic pneumothorax, a traumatic haemopneumothorax, a fracture of shaft of his clavicle and an anterior dislocation of his humerus. ([57]). Mr Burns briefly lost consciousness. He also sustained lacerations to his left forehead. Mr Burns required an open reduction internal fixation for his fractured clavicle, and surgical repair of the wounds to his scalp. He remained in intensive care for two days. ([58]).

At the time of sentence, Mr Burns was still receiving extensive rehabilitation treatment, including ongoing therapy with a physiotherapist, exercise physiologist and psychologist. He continued to experience high levels of fatigue, reduced exercise tolerance, as well as chronic pain in his back and left shoulder. He had not yet been able to return to work full- time. His functional capacity was much reduced compared to his pre-injury function, particularly with respect to his ongoing left shoulder injury, traumatic scoliosis caused by the multiple spinal fractures, and lumbo-pelvic instability. It was likely that he would require intensive ongoing rehabilitation for the next 12 to 18 months to assist him in his recovery.

Graham McBride (aged 54) had: a vertebral fracture, multiple rib fractures, a radial shaft fracture and scalp laceration ([59]). Mr McBride lost consciousness at the scene, his left arm had been pinned under the bus and his left elbow was degloved. Mr McBride’s C2 vertebral fracture was surgically fixed. His left 5th and 6th rib fractures were managed conservatively. His left radial shaft fracture was operated on, requiring proximal radius operative fixation and split thickness skin graft. Mr McBride’s scalp laceration was sutured in the emergency department ([60]).

At the time of sentence, Mr McBride had ongoing issues with a left middle finger palsy and left shoulder pain for which he continued to see orthopaedic specialists and attend ongoing physiotherapy sessions. As already noted, he lost his wife and only child in the crash.

Nikiforos Dinakis (aged 29) had the following injuries: a C7 right pars interarticularis, articular facets and right pedicle fractures, a C4 spinous process fracture and facial lacerations. He also had broken teeth ([61]). Mr Dinakis was found on the side of the road at the scene. His Glasgow Coma Scale score was 7. Mr Dinakis was intubated from 12 to 13 June 2023 and remained in hospital until 19 June 2023, before being discharged to return to Victoria ([62]). Mr Dinakis had post traumatic amnesia for several days. He subsequently underwent further facial surgery.

At the time of sentence, Mr Dinakis required ongoing psychological support and occupational therapy. He continued to exhibit anxiety and other symptoms associated with PTSD. He had memory problems and ongoing issues with cognitive function. He had only recently returned to work on a limited basis of three days a week and reported high levels of exhaustion in coping with that limited return. As noted, his fiancée, Darcy Bulman, died in the crash.

Jennifer Warren (aged 58), the wife of Gregory Warren and mother of Luke Warren, presented to Maitland Hospital with neck pain and right shoulder pain. She had an acute unstable C2 fracture, extending into both lateral atlantoxial joints, and a comminuted fracture of the right C2 lateral mass involving right C2 foramen as well as further spinal fractures such as an undisplaced fracture of right C4 superior facet; an acute fracture of left T1-L1 transverse processes, a minimal compression of the T3 vertebral body, of uncertain age, left posterior rib fractures and an acute fracture of posterior left 9th-11th ribs, with up to mild displacement at the 10th and 11th rib fracture sites; ([63]). Ms Warren’s unstable cervical spine fracture required operative fixation ([AB]).

After her back surgery to have the odontoid process fixed with a screw, Ms Warren had ongoing neck pain and intermittent pain in her right upper arm, with associated paraesthesia and numbness. At the time of sentence, she required ongoing pain management and osteopathy treatment, primarily for her cervical spine injuries and worsening headaches. More recently, she has suffered significant traumatic and mental health injuries that have manifested since the time of the bus crash and which have developed in severity over time.

Luke Warren (aged 29), the son of Jennifer and Gregory Warren, sustained a comminuted and displaced left clavicle fracture, and underwent an open reduction and internal fixation for repair. He will have permanent scarring over his collarbone and he may have permanent numbness to his upper left chest area ([65]). Mr Warren’s clavicle fracture caused temporary disability, pain, and loss of function for several months.

By the time of sentence, Mr Warren had required long-term physiotherapy as well as treatment with a psychologist to deal with the impact of the crash and the injury. He reported ongoing left side neck pain as late as July 2024. He had required long-term physiotherapy to improve his range of mobility and general function of his left arm and shoulder as well as continuing treatment with a psychologist to deal with the trauma of the bus crash and its aftermath.

Brandon Stafford (aged 27) was taken by helicopter to Royal Prince Alfred Hospital. He sustained a broken jaw that required surgical intervention. It was wired shut which required him to be on a liquid diet for six weeks ([66]). He required a prolonged period on a liquid diet and underwent review from a speech pathologist. For many months, Mr Stafford struggled with eating, jaw pain and decreased range of movement of the jaw. By the time of the sentence, while he had made significant improvements, he was likely to have ongoing jaw pain and difficulty eating. He suffered back and neck soreness after the crash and needed to see an osteopath for regular physical therapy. He had been working with a psychologist for his trauma.

Tyrone Gersh-Mizen (aged 31) was also taken by helicopter to Royal Prince Alfred Hospital. He sustained a left forearm compartment syndrome, which required a fasciotomy, following fractures to both the radius and ulna and a left midshaft humerus fracture. All of the fractures required surgical intervention, and internal fixations ([67]). His injuries required skin grafting and surgical repair including fasciotomy and debridement of the left forearm. He remained an inpatient for an initial 10-day period. He required regular wound dressings, monitoring for infection, pain management and psychological support for PTSD and grief counselling after the loss of his partner, Tori Cowburn. By the time of sentence, he had regained full function of his left upper limb. He still required ongoing treatment with a mental health specialist for trauma and other psychological effects.

The remaining 16 passengers suffered injuries of varying severity, ranging from multiple fractures of the ribs, clavicle and lumbar spine, serious facial lacerations, acute kidney injury, mild traumatic brain injury and other deep lacerations and haematomas, soft tissue injuries of the neck and spine, deep abrasions, haematomas and lacerations to the face and body (see [68]-[83]).

Jason Junkeer, Sharyn Junkeer’s husband, complained of C-spine tenderness, had to wear a collar, and had sutures that remained in place for 10 days ([68]).

Nicholas Cox (aged 30), Hannah Cox’ husband, attended John Hunter Hospital. He sustained multiple deep abrasions to his right hip, and a small, less than 1cm laceration to his right dorsal hand fourth metacarpophalangeal joint. His wounds were cleaned and dressed, and there was no need to close the laceration ([69]).

Hannah Cox, Nicholas Cox’ wife, attended John Hunter Hospital. She sustained a laceration to her left upper eyelid, which was sutured on arrival. She complained of pain in her left shoulder and C-spine tenderness. She had a headache, amnesia, and no recollection of what had occurred. A CT scan showed large scalp haematomas ([70]).

Laurie Healey extricated himself from the bus and assisted his wife, Emma Healey, who sustained grievous bodily harm in the crash (see above). Mr Healey attended John Hunter Hospital some time after the incident with neck discomfort. A CT scan showed no evidence of a C-spine injury, although soft tissue injuries to his neck were noted. Mr Healey sustained a small graze to his right ankle and a 2cm laceration to his left axilla, which required suturing ([71]).

Gregory Warren, the husband of Jenny Warren and father of Luke Warren, presented to Maitland Hospital and was transferred to John Hunter Hospital, complaining of C-spine tenderness and right shoulder pain, with obvious abrasions to his arms and hands. He suffered displaced rib fractures on the left side, of the lst-4th ribs, a left clavicle fracture and an acute kidney injury ([72]).

Megan Hooper presented to Maitland Hospital. She indicated she had hit her head and complained of sore ribs on the left side. She had a gash to one of the fingers on her right hand ([73]).

Eleanor De Forest presented to Maitland Hospital complaining of generalised back pain. A small haematoma was evident to her right scalp, and some grazing to her right shoulder and back ([74]).

Nicholas Oremek presented to Maitland Hospital with a haematoma behind his right ear; a small bruise under his right eye; a graze to his shoulder and back; and two small grazes to his left hand ([75]).

Sarah Mousley presented to Maitland Hospital with a laceration to the left side of her lip and cheek. Glass was removed from her cheek during the examination. The lip injury involved a full thickness penetration externally into the oral cavity, and a steri-strip was applied in advance of suturing. The facial lacerations were assessed as complex, requiring specialist referral and management to minimise risk of significant scarring and any functional or cosmetic deficit. Ms Mousley also had some minor abrasions to her left lower leg. She does not recall the crash ([76]).

Cameron White presented to Maitland Hospital complaining of back pain. He had three left lower rib fractures and a minor apex scalp abrasion ([77]).

Isabella Liddy, whose partner, Angus Craig, died in the crash, presented to Calvary Mater Hospital. On arrival she was complaining of pain to her right ankle and right shoulder. She had self-extricated from the bus and had not lost consciousness. There was a small area of erythema and a small laceration to her right ankle, which was sutured. Multiple superficial abrasions and tiny lacerations were noted, said to be a result of glass fragments. There was a superficial burn over Ms Liddy’s right lateral heel ([78]).

Jack Ellis presented to Calvary Mater Hospital with undisplaced left L2-L4 transverse process fractures, and lower lip and left mastoid lacerations. The laceration to Mr Ellis’ lip was repaired with sutures, and the left mastoid laceration with tissue glue and steri-strips ([79]).

Drew El Moussalli presented to Calvary Mater Hospital with soft issue injuries to his right ribs and hip, bilateral knees, left shoulder, neck and lower back; and a mild traumatic brain injury/concussion ([80]).

Samantha Arielle Sandoval presented to Calvary Mater Hospital with tenderness and bruising to her anterior superior iliac spine and proximal femur bilaterally. A CT scan showed some minor subcutaneous stranding (fluid accumulation) over the anterolateral aspects of the hips ([81]).

Alexander Tigani (aged 28) presented to Calvary Mater Hospital with left shoulder/scapular pain ([82]).

Samuel Howard , whose fiancée Rebecca Mullen died in the crash, ended up half out of the back left window of the bus, with the roof of the bus across his torso. He was on his back and vomiting when assistance was provided, allowing him to slide out. Mr Howard presented to Maitland Hospital complaining of pain to the left side of his back. Swelling to the left parietal region of the scalp and face was noted, along with multiple abrasions to the scalp, a left sided subconjunctival haemorrhage and a small superficial laceration to the left upper back. Multiple glass fragments had to be removed from the dorsum of both hands ([83]).

From 2016 until October 2022, Mr Button worked as a bus driver for CDC (operator of Hunter Valley Buses). He had earlier suffered a workplace injury in 1994 ([85]). In his employment application, Mr Button indicated that he was taking prescription medication that may affect his ability to work. He did not tick boxes to indicate that he suffered from back, neck or shoulder injuries ([86]). On a pre-employment medical assessment conducted on 29 August 2016, Mr Button was found to be fit for the role. It was noted that he had a pre-existing back injury and was taking Tramadol daily for back pain. A drug and alcohol screen on 29 August 2016 noted a positive result for opiates/morphine in the urine sample ([87]).

On 30 August 2016, Mr Button’s regular GP wrote a letter stating that his longstanding back pain was well controlled and that there was no reason why he could not perform the normal duties of a bus driver ([88]). Mr Button commenced employment with Hunter Valley Buses on 6 September 2016 ([88]).

On 26 September 2018 (three months after starting work for CDC), Mr Button attended a consultation with his GP, whose notes record that he reported increased back pain after 33 hours working in the bus the previous week. He was prescribed Panadeine Forte in addition to Tramadol ([91]).

Mr Button’s GP referred him to two pain specialists, on 18 January 2022 and 15 February 2022, for an opinion and management regarding worsening back pain with neck pain triggered more recently by work as a bus driver. The referral stated that he was “using more oral analgesia that we are concerned about”. On 15 February 2022, his GP prescribed Tramadol 100mg modified release tablets, Tramadol 200mg modified release ablets and Tramadol 50 mg capsules ([92]).

On 8 March 2022, Mr Button submitted a WorkCover claim, stating that his 1994 injury had been aggravated while driving buses and had been getting worse over the previous 12 months ([93]).

On 3 June 2022, Dr John Prickett, a pain specialist, described Mr Button as “increasingly dependent on opiate-based medications with diminishing clinical benefit”. The report said that he had “an opiate dependence disorder with features of vulnerability to addiction” and that he “recognises that his current style of medication use is inappropriate”. The report recorded Mr Button’s daily use of mediation as “Tramadol 50mg immediate release … approximately once per day. Tramadol 100mg slow release, … anywhere between 2 and 5 times per day” and that “he will use approximately 20 x Tramadol 200’s and 20 x Tramadol 100’s per week in a pain contingent fashion although tries not to take them when he is driving. He also uses up to 10 x Panadeine Forte tablets per day as well as some Mobic” ([94]).

On 14 June 2022, Mr Button was stood down from his duties following receipt of Dr Prickett’s report ([95]). A CDC employee contacted him on 15 June 2022 and noted that he was emotional and angry with Dr Prickett. He disagreed that he was addicted to opioids, stating that he felt he just had a high dependency. He said that he not taken any opioids since the appointment and that he could not afford not to work ([96]).

On 13 July 2022, Mr Button told a WorkCover impairment assessor that he felt he could not work as a bus driver without being able to take adequate pain relief ([98]).

On 9 September 2022, Dr Tame, a different pain specialist, provided a second opinion, reporting that Mr Button had been using “quite high doses of Tramadol to try and improve function and remain at work” and that this was “quite a long standing arrangement”. Dr Tame commented that he would be surprised if workplace regulations allowed employees to drive in a public transport capacity while using opioid analgesics but said that he was not an expert on that area. Mr Button reported to Dr Tame that he was using 50mg doses of Tramadol on most days and an additional 100 to 200mg per day depending on symptoms. He had ceased using Panadeine Forte. Dr Tame noted that Mr Button’s reports indicated that he used no more than 250mg of Tramadol per day in total. Dr Tame also noted that he was “desperate to get back to work” and “happy to comply” with whatever strategies and assessments would help facilitate this. Dr Tame recommended obtaining a specialist opinion to determine Mr Button’s risk of addiction and abuse; and indicated that, subject to obtaining a favourable opinion on that issue, Dr Tame would be happy with Mr Button using up to a maximum of 150mg slow-release Tramadol per day ([99]).

On 16 September 2022, Mr Button’s worker’s compensation claim was declined ([100]). On 20 September 2022, he re-commenced Tramadol, with prescriptions for 50mg modified release tablets, 150mg modified release tablets and 50mg capsules ([101]).

On 26 September 2022, Dr Tame reported that Mr Button had concluded that he would not be able to get back to work unless he was permitted to use low dose opioid analgesics at work. On 29 September 2022, Dr Tame discussed limiting Mr Button’s Tramadol to 100mg daily with Mr Button’s GP, Dr Scheman, ([102]).

On 30 September 2022, CDC arranged a meeting with Mr Button to discuss his medical prognosis and ability to continue to perform his role as a bus driver. An independent medical assessment was arranged for 19 October 2022. On 4 October 2022, Dr Scheman noted that Mr Button was “very upset and depressed with how work has treated him” ([103]).

On 15 October 2022, Mr Button applied for employment with Sid Foggs Coaches ([104]).

In a 17 October 2022, in a consultation with Dr Scheman, Mr Button reported that he felt he could get back to work driving and was keen to do so. Dr Scheman recorded that Mr Button “has to stick to max. medication recommended by specialist though – separate issue from his back pain” ([105]). From then until the bus crash, Mr Button continued to be prescribed 150mg Tramadol modified release, 50mg modified release and 50mg tablets ([106]).

On 19 October 2022, Mr Button resigned from CDC, effective immediately. He commenced driving with Sid Fogg’s Coaches on a casual basis two days later. On 11 November 2022, Mr Button resigned from that position following an unrelated dispute ([107]).

In November 2022, Mr Button commenced casual employment with Linq Buslines, after answering an advertisement. There was no record that he disclosed his use of Tramadol to his new employer (despite self-report required by its Drug and Alcohol Policy) ([108]).

Mr Button had no traffic matters in NSW but a number of offences on his Victorian licence: a demerit point in 2019, for exceeding the speed limit by less than 10km, and 3 demerit points in 2018, for exceeding the speed limit by 15km/h or more but less than 25km/h ([109]).

Mr Button participated in an ERISP at 11:35am on the morning after the crash. He described it as follows:

Mr Button said that on the day of the crash, he had taken 50mg of Tramadol in the morning, then 50mg slow release Tramadol around “lunch time”, and a 150mg Tramadol slow release tablet around 2pm ([115]). (This was contradicted by the pharmacological evidence – see below.) He said that the Tramadol dulled his neck pain from disc lesions with arthritis.

Tramadol is an opioid analgesic considered equipotent to codeine and has a depressant effect on the central nervous system. Its typical effects include respiratory depression, euphoria, somnolence, mental clouding and ataxia (unsteadiness) and impairments to visual memory and functions, comprehension, attention, problem solving and decision-making ([119]).

Samples of Mr Button’s blood and urine were taken at 1:10am on 12 June 2023 at Singleton District Hospital. Analysis of those samples revealed 0.62mg/L of Tramadol and >5mg/L of Panadol in Mr Button’s blood ([118]). Mr Button’s blood concentration of Tramadol indicated he had consumed a higher dose of Tramadol than he had reported to the police. Dr Perl, a clinical forensic pharmacologist, Dr Perl, considered that the blood concentration strongly suggested a dose of around 400mg in the 24 hours before the sample was taken ([121]). Dr Perl noted that, while some of Mr Button’s behaviours immediately after the crash may have been partly due to shock, others were consistent with the critical nervous system depressant effects of high Tramadol concentration ([122]).

Given the high concentration of Tramadol in Mr Button’s system, his driving ability would have been impaired, even taking into account the fact that he would have developed a tolerance to his prescribed dose ([120]).

The Statement of Agreed Facts included in the opening Summary (at [9]) that at the time of the crash the applicant was driving in a manner dangerous to other persons, in that he:

The sentence hearing took place in the District Court at Newcastle on 9 to 11 September 2024.

The Crown tendered 46 victim impact statements (A21-A47), 31 from family members of the ten deceased (three of whom were also passengers on the bus), and 15 from other surviving passengers.

A psychiatric report of Dr Christopher Bench was tendered (Ex 2), as to Mr Button’s background and mental health. Dr Bench noted that: Mr Button left school in year 10 before attaining his school certificate, having been a poor and easily distracted student. Mr Button spoke positively of his parents and his upbringing generally, with the exception of sexual abuse by an adult friend of the family that occurred at age 15. After leaving school, he worked in car yards and car sales before turning to driving buses. Mr Button had two adult sons from his first marriage, and two further sons (one aged 13) with his second wife of 27 years. He had sustained a back injury in 1994 and had bursitis in both shoulders and osteoarthritis in both knees. Before his arrest, he was drinking infrequently, had smoked cannabis and used amphetamines in the past, and acknowledged having over-used prescribed opioids for pain management.

Dr Bench noted that Mr Button was diagnosed with depression and anxiety in 1992, which had resolved. He had reported suicidal ideation after the offending and significant anxiety, flashbacks and intrusive thoughts, and had engaged in sessions with a Lifeline counsellor. Dr Bench noted that, in custody, Mr Button was a sweeper in his pod and that he had been the subject of threats and intimidation but no prolonged periods of isolation.

Dr Bench considered that, with a reasonable degree of medical certainty, Mr Button met the diagnostic criteria for Major Depressive Disorder with anxious distress recurrent, Opioid Use Disorder in enforced remission, and Posttraumatic Stress Disorder but that only the Opioid Use Disorder materially contributed to the offending. Dr Bench opined that there would be a foreseeable risk of a custodial sentence exacerbating his Posttraumatic Stress Disorder and depression and that in this context a custodial sentence would weigh more heavily on him than the average individual.

Character references were tendered from Mr Button’s wife and four friends, two of whom had also been his work managers when he was a car salesman (Exs 3-7).

Mr Button gave evidence on the morning of the third day of the sentence hearing.

He said that he had been taking Tramadol since 1994, and that, in 2022, when made aware of Dr Prickett’s opinion, it was his perception that he was addicted, or “certainly dependent” (11/09/24; T 4.25). He said that when he had told Dr Bench he did not feel he had ever “abused” opioids, he meant he “didn’t take them for any other reason than pain” (11/09/24; T 4.36). His experience was that the effect of Tramadol on him was that it “relieves pain” and it was not accompanied by anything in the nature of a high or any consciousness of intoxication. He said it was not his perception on the night that his driving ability was impaired by his ingestion of Tramadol (11/09/24; T 5-6). He agreed that he took significantly in excess of his prescription that day (11/09/24; T 6).

Mr Button said that he did not have a recollection of previously having approached the roundabout from the direction that he did that night (11/09/24; T 6) (cf his earlier statements to police that he had travelled the roundabout many times). He accepted that, to overturn the bus, he had to be driving at a speed significantly higher than the safe speed for the roundabout (11/09/24; T 7) and that the bus tipped over because at the crucial point it was travelling in excess of 50km/h (11/09/24; T 7).

Mr Button expressed remorse for his offending, saying “I can’t forgive myself”, “I’ve committed the ultimate sin”, and “I hate myself, and I want to disappear” (11/09/24; T 10).

In cross-examination, Mr Button accepted that he had told various police officers after the crash that he was familiar with the corner he took (11/09/24; T 11). He gave evidence that, when he said “this next part’s going to be fun” on approach to the roundabout, he was referring to the ramp onto the freeway being like a rollercoaster (11/09/24; T 5-14). Mr Button agreed that he was stood down (from CDC) as a result of Dr Prickett’s report because someone dependent on opioids and vulnerable to addiction cannot be driving a bus due to very clear safety concerns (11/09/24; T 16). He also agreed that Dr Scheman had emphasised to him in October 2022 that he had to stick to the specialist’s recommended maximum, and that the limit existed because of the danger he posed while being a bus driver from taking high quantities of Tramadol (11/09/24; T 17).

In response to questions from the sentencing judge, Mr Button acknowledged that, with hindsight, the doctors limited his Tramadol prescription because its use would affect his driving. However, he said, “I’ve been taking it for so long, I guess I didn’t think about it. I never felt affected by tramadol” (11/09/24; T 19).

Mr Button agreed that he knew from June of 2022 that using large amounts of Tramadol made him a danger on the roads, that he thought he knew better than the doctors about the risk he posed, and that, on the night of the crash, he was joking about rollercoasters at a time when he knew he had taken far more Tramadol than his doctors had recommended (11/09/24; T 20).

Following Mr Button’s evidence, counsel made oral submissions (written submissions having been previously filed). The sentencing judgment was given that afternoon; mostly ex tempore as his Honour noted.

His Honour referred to the number of victim impact statements that were read or otherwise tendered that painted a graphic picture of devastation caused by the offending; the significant emotions the sentence hearing had generated; and the extraordinary devastation suffered by so many individuals and families. His Honour considered that no assistance could be gained as to an appropriate range of sentence, from statistics or comparable cases, given the nature of the case.

His Honour expressly noted that Mr Button was entitled to a 25% discount to reflect his early pleas.

The sentencing judge referred to the Agreed Facts without reciting them in full.

His Honour noted that the speed of the bus was recorded at 52km/h before reaching entry to the roundabout, and 56.48km/h on the roundabout. His Honour noted that “Mr Lennon, the traffic expert, calculated that the tipping threshold, that is the speed at which a rollover of the bus was likely, was 31 kilometres per hour”, and said that Mr Button must have accelerated at the “higher end” of normal driving and towards the “aggressive” end, given that he was recorded at 52km/h before reaching the entry point.

His Honour found that Mr Button was driving the bus at an excessive speed, not only as it entered the roundabout but as it was travelling through it before it reached the sharper curve he needed to negotiate.

His Honour noted the history of Mr Button’s use of Tramadol from 2016, and his examination by two pain specialists, both of whom considered that he had become opiate dependent, leading to his being stood down from his position as a bus driver in 2022. His Honour said that Mr Button “did not accept that his use of tramadol opiate painkiller was a problem in terms of his driving … notwithstanding the fact that the prescribing authorities indicated a lower 24-hour maximum quantity … than would otherwise operate had he not been the driver of a bus”. His Honour also noted that Mr Button was aware of this lower level maximum quantity, but that it was clear that on the day of the offence the far exceeded it. His Honour considered the pharmacological evidence concerning the impacts of Tramadol on the central nervous system and its typical effects and noted that a number of the typical effects of the opioid analgesic are significant factors for a person driving any vehicle, let alone a bus. Later in his reasons, his Honour referred to Mr Button’s “insistence essentially that he knew more than the doctors”.

The sentencing judge referred to the relevant passages of the Agreed Facts and the summaries in the Crown’s written submissions as to the passengers’ injuries (without reciting them), which his Honour found to be clear and accurate.

His Honour noted that Mr Button’s traffic and criminal history was limited and found that he was otherwise a person of good character, with the potential exception being in relation to his use of Tramadol. His Honour nevertheless commented that Mr Button’s ignoring of doctors’ advice, and his insistence that he knew more than them and that his use of Tramadol would not adversely affect his driving, was an approach one might not expect of a person of good character, given the significance of a bus driver’s role to ensure passenger safety.

His Honour further noted that good character may be less relevant for driving cases, and that Mr Button’s good character was probably one of the reasons he was able to obtain his role as a bus driver.

The sentencing judge referred to the purposes of sentence in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act), noting the significance of general and personal deterrence, the need to make an offender accountable and to denounce his conduct, the need to protect the community from an offender, and the need to recognise the harm done to victims and the community and to ensure that the offender is adequately punished.

His Honour recorded that he took into account the victim impact statements, including those of family members of the deceased in accordance with s 30E(3) of the Sentencing Procedure Act and the observations of McCallum J in R v Halloun [2014] NSWSC 1705 at [46].

The sentencing judge referred to community attitudes to offences of this type, as evidenced over the years by increases in maximum penalties and the issuing of two guideline judgments. His Honour noted that human life is precious, and the taking of a human life by dangerous driving is a crime of considerable seriousness.

His Honour considered the issue of abandonment of responsibility as referred to in the guideline judgment of R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343, placing significance on Mr Button’s responsibility, as a driver of a bus containing 35 people, to ensure the safety of his passengers, which necessitated that his manner of driving should have been exemplary. His Honour said that the guideline judgment provided no assistance in terms of the appropriate sentence to be imposed, given the number of victims who lost their lives and the number who were seriously injured.

Having stated that the question of moral culpability was significant, his Honour said that “[t]hat he drove knowing he was under the influence of an opioid painkiller, tramadol, having consumed a quantity of the drug which was well over the prescribed 24-hour dosage limit, was a significant breach of the duty of care he owed his passengers” (emphasis added). Ground 1 challenges the italicised portion of this statement.

The sentencing judge found that Mr Button drove the bus into the roundabout at a speed which greatly exceeded the calculated tipping point or rollover speed for a bus negotiating that particular roundabout, despite telling numerous police and others that he was familiar with the roundabout, and at one point was travelling at 56.48km/h, “nearly twice the estimated rollover tipping point speed of 31km/h”. Ground 2 challenges the last of those statements. His Honour found that risk-taking behaviour was the only explanation for the things he said and for his speed and was satisfied that the driving demonstrated an abandonment of his responsibility to ensure his passengers’ safety and evidenced “very high” moral culpability.

The sentencing judge referred to the catastrophic consequences of this abandonment of responsibility, namely the deaths, and the physical injuries and mental health issues suffered by the surviving passengers and acknowledged the inexpressible “pain, anger, frustration and sadness” which permeated the two days over which victim impact statements were read.

As to totality, his Honour reflected that Mr Button’s single act of driving the bus in a manner dangerous made him guilty of 35 offences, and noted that the real substance of the offence “is not just the dangerous driving; it is the dangerous driving in association with the taking of a human life” (R v Musumeci (unreported, NSWCCA 30/10/97), per Hunt CJ at CL). His Honour referred to authorities that establish a need for notional accumulation between indicative sentences to reflect the criminality of each offence in accordance with Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57.

His Honour stated that the sentences indicated for each of the ten counts resulting in death would be identical, but that there would be some variation within the categories of offences resulting in grievous bodily harm and the s 53 offences, to reflect his assessment of the seriousness of the injuries to each victim.

His Honour stated that he would then comply with the principle of totality and the requirement of accumulation by imposing an aggregate sentence to reflect the Court’s assessment of the total criminality of all 35 offences and said that a “reasonable degree” of (notional) accumulation was appropriate.

The sentencing judge found that Mr Button had expressed genuine remorse and contrition in his evidence on sentence and accepted responsibility for the devastating consequences of his driving.

His Honour noted the medical history reflected in Dr Bench’s report, and the sexual assault experienced by Mr Button as an adolescent. In terms of Mr Button’s mental health, the sentencing judge found that Mr Button had suffered suicidal ideation from time to time since the collision and been hospitalised on one occasion, and that he had received some threats and intimidation in custody but had not experienced prolonged periods of isolation. His Honour noted that Mr Button was experiencing nightmares daily and his relationship with his wife was “rocky”. His Honour also noted Dr Bench’s proposed diagnoses and found Mr Button’s time in custody is likely to be served in harsher circumstances, having regard to his PTSD, age and physical condition.

The sentencing judge noted the character references and found that there was no question of extra-curial punishment or hardship to third parties.

His Honour declined to make a finding of special circumstances, as the length of the sentence would allow for a sufficiently lengthy parole period without varying the statutory ratio, while ensuring that the non-parole period adequately covers the criminality of the offending.

His Honour specified the indicative sentences for each offence before imposing the aggregate sentence the subject of this appeal.

Given the length of the aggregate sentence and the evident public interest in this matter, it is appropriate to grant leave to appeal.

This ground of appeal impugns the finding in the sentencing judgment identified above that Mr Button “drove knowing that he was under the influence of an opioid painkiller, Tramadol”. In essence, as emerged in oral submissions, Mr Button reads that statement as amounting to a finding that he drove knowing that he was “adversely affected” by Tramadol.

Mr Button says that it was no part of the Crown case, nor was it part of the Agreed Facts, that he knew that he was under the influence of Tramadol. As to the Agreed Facts, he says that these are expressed in terms of his knowledge of the capacity of the drug to affect his driving. As to his evidence at the trial, Mr Button points to his evidence that he did not believe he was adversely affected by the amount of the drug that he had taken and says that this was unchallenged.

In particular, Mr Button points to the following evidence given during his examination in chief (11/09/24; T 4-5):

After giving evidence that on 11 June 2023 he had taken Tramadol 50mg immediate release at about 7am, 150mg slow release mid-afternoon, and 150mg slow release at about 8 to 10pm, Mr Button said this (11/09/24; T 6; 18-20):

Mr Button says that at no point was it put to him that his evidence as to his asserted state of belief (that his driving ability was not impaired by having taken Tramadol) was untrue. Mr Button submits that his Honour’s finding that he drove “knowing” that he was under the influence of Tramadol is inconsistent, and impossible to reconcile, with other findings made by his Honour, referring to the following passage:

Mr Button points out that his Honour did not reject his assertion as to his state of mind (i.e., that he did not believe he was adversely affected by the drug). Rather, his Honour found that Mr Button’s claim to know better than medical practitioners compromised “such claim to good character as he had”. (There is no challenge to his Honour’s finding on the issue of Mr Button’s prior character.)

Mr Button accepts that it may well be said that his belief that he was not adversely affected by the drug was unreasonable but says that this cannot be converted to a positive finding of knowledge.

Mr Button thus contends that the finding impugned by Ground 1 went beyond the Agreed Facts and was unsupported by the evidence before the sentencing judge.

The respondent emphasises that it was one of the particulars of Mr Button’s dangerous manner of driving, and part of the agreed facts he signed, that he “was under the influence of Tramadol to the degree that there would have been some impairment of his driving ability, having consumed Tramadol in a quantity exceeding the maximum recommended by medical professionals, and knowing that consuming substantial amounts of Tramadol had the capacity to affect his ability to drive” (referring to Ex A4 [9]).

The respondent points out that, shortly before delivering his sentence judgment, his Honour had heard Mr Button’s evidence about his use of Tramadol and his beliefs about its effects on him, and the sentencing judge had himself questioned Mr Button on that topic (11/09/24; T 4-6; 15-21). The respondent refers to Mr Button’s evidence as to his opioid use (already summarised above), including that he was aware that the maximum medication limit recommended by his specialist was because of the danger that he posed while being a bus driver and taking high quantities of Tramadol (and see also the acceptance in cross-examination that he knew from June 2022 that using large amounts of Tramadol made him a danger on the roads (11/09/24; T 20)).

The respondent says that it was not the Crown case that Mr Button felt high, intoxicated or otherwise subjectively affected by the Tramadol he took. Rather, the Crown case was that he knew he had taken more Tramadol than he was prescribed (described in his evidence in chief as “significantly in excess of his prescription”) (11/09/24; T 6.3) and he knew that taking substantial amounts had the capacity to affect his ability to drive. The respondent submits that the practical effect of Mr Button’s acceptance of those two propositions is that he knew he was “under the influence” of Tramadol.

The respondent contends that the finding impugned by Ground 1 (“[t]hat he drove knowing he was under the influence of an opioid painkiller, tramadol, having consumed a quantity of the drug which was well over the prescribed 24-hour dosage limit, was a significant breach of the duty of care he owed his passengers”) was consistent with the Agreed Facts and Mr Button’s evidence, namely that he determined to drive a bus containing 35 passengers, knowing that he had taken a quantity of Tramadol that made him a danger on the roads; and that this was a serious aspect of his offending.

The respondent notes in this regard that where a party chooses to supplement an agreed statement of facts with oral evidence it is open to the sentencing judge to make factual findings in accordance with the further evidence adduced (Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 at 606; (1992) 63 A Crim R 316; FV v R [2006] NSWCCA 237 at [40]).

At the outset, we note that there has been some doubt expressed as to the test to be applied by an appellate court where there is a challenge to factual findings made by a sentencing judge (namely, whether the findings were reasonably open on the evidence before the sentencing judge, i.e., there was some basis for the finding – see Ocek v R [2023] NSWCCA 308, per N Adams J at [116] (Ward P and Stern JA agreeing)) or whether the appellate court may substitute its own factual finding if persuaded that the finding of the sentencing judge was in error (see Clarke v R [2015] NSWCCA 232; (2015) 254 A Crim R 150; Hordern v R [2019] NSWCCA 138; (2019) 278 A Crim R 353). That issue was recently the subject of submissions in this Court before a bench of five, on which judgment is presently reserved (Hancock v R). It was not raised as an issue in the present appeal and does not need (nor is it appropriate for it) to be addressed here in light of the conclusions we have reached. Even if the latter test is the applicable test, we do not accept that his Honour erred in the respects contended by Mr Button (or, if he did, that the error was material).

Fairly read (and noting that they were delivered orally on the third day of the sentence hearing and hence should be read without an eye finely tuned to error), the reasons on sentence did not encompass a finding that Mr Button knew at the time he drove the bus that night that he was adversely affected by the opioid drug he had taken. What the sentencing judge found (amply supported by the Agreed Facts and Mr Button’s own evidence) was that he knew that he had taken significantly in excess of the recommended maximum limit of Tramadol when he drove the bus that evening; knew that the drug had the capacity to affect his ability to drive; and knew that the reason for the limitation on his use of opioid medication while driving a bus was that that he was a danger (or potential danger) on the roads. That sustains the finding that Mr Button drove “knowing he was under the influence of” Tramadol, when understood in the context of the following words “having consumed a quantity of the drug which was well over the prescribed 24-hour dosage limit”.

Insofar as Mr Button complains that his state of mind on this issue was unchallenged, it may be noted that the cross-examination by the Crown prosecutor did in effect challenge his evidence as to his state of mind in that the Crown prosecutor confronted him with the proposition (which Mr Button accepted) that he knew his doctor had said that the level of the drug he had taken made him a danger on the roads. In any event, whatever he thought or believed about the effect of the drug on him, it was not in dispute that Mr Button knew that he had taken significantly in excess of the daily limit imposed on his use of Tramadol by his medical specialist and knew the reason for that limitation. It is that knowledge to which the impugned finding relates (not his subjective belief as to whether the drug had adversely affected him).

We do not accept that the finding that Mr Button drove knowing he was “under the influence” of Tramadol can fairly be read as a finding that he drove knowing that he was adversely affected by the drug. Indeed, in oral submissions on the appeal, Senior Counsel for Mr Button appeared to accept that his argument on this point amounts to no more than someone under the influence of alcohol saying that he or she did not believe he or she was affected by it (AT 3.20). While Senior Counsel maintained that that the argument here put for Mr Button is different, in essence what he now relies on (as explained above) is that a reading of the impugned finding amounts to a finding of actual knowledge that he was adversely affected by the drug. We do not accept that this is what his Honour found. Rather, his Honour found in effect that Mr Button knew when he drove the bus that he had taken significant amounts of the drug and in that sense knew that he was “under the influence” of the drug (whatever his subjective belief as to the actual effect of the drug).

No error is established. Ground 1 is dismissed.

Ground 2 impugns the statement by his Honour that the estimated rollover tipping point speed for the bus was 31km/h. Mr Button submits that this finding necessarily aggravated the view that his Honour took of the degree to which he exceeded both safe and likely rollover speeds of the bus.

Mr Button says that, at the point in the roundabout at which the bus overturned, the opinion of Mr Lennon was that the likely rollover speed of the bus was 47km/h; and that the estimated rollover speed of 31km/h related to the entry of the roundabout which Mr Button says had been successfully negotiated. (Some might cavil with the proposition that the entry to the roundabout had been successfully negotiated in circumstances where it was an Agreed Fact that, as the bus entered the roundabout it began to tilt towards the left ([7]) but it is not here necessary to explore the precise point at which the bus commenced to roll.) In oral submissions, Mr Button argues that the sentencing judge was “fixated” on the speed of 31km/h (AT 7.47).

Mr Button notes that the highest recorded speed of the bus through the roundabout was 56.48km/h at a point earlier than the ultimate rollover point. He says that his Honour’s juxtaposition of 56.48km/h with 31km/h was erroneous (by saying that this speed was nearly twice the estimated rollover tipping point speed of 31km/h); and that the appropriate comparison for a consideration of the degree to which Mr Button’s speed was dangerous is 47km/h (that, we note, being the estimated tipping point closest to the point on the roundabout at which the bus reached its final position).

Mr Button accepts that it was open for his Honour to consider the whole course of driving through the roundabout and acknowledges that the speed at which he drove was clearly excessive in the circumstances. However, he complains that his Honour’s “apparent” finding substantially exaggerated the variance between the relevant calculated rollover speed and the actual speed of the vehicle at the point where it overturned.

The respondent points out that his Honour correctly observed that: Mr Lennon calculated that the tipping threshold was 31km/h (although we note that his Honour did not there add that this was the tipping threshold at the entry to the roundabout); that, for the bus to have reached a speed of 56.48km/h on the roundabout, Mr Button must have accelerated at a level which was the higher end of normal driving and towards the aggressive end; and that the bus was recorded as travelling at 52km/h before it reached the actual entry to the roundabout. The respondent refers to the Agreed Facts which establish ([32]-[33]) that the bus was travelling at 52km/h immediately before reaching the entry to the roundabout, the tipping threshold at the entry to the roundabout was 31km/h, and the bus was travelling at 56.48km/h at a point on the roundabout.

The respondent notes that Mr Button passed through the entry to the roundabout (where the tipping threshold was 31km/h) before he reached a speed of 56.48km/h a short distance later. The respondent says that the precise speed at which he did so is unknown and that excessive speed on both entering and traversing the roundabout accords with the passengers’ observations, which do not describe heavy braking before entry (Agreed Facts [28]-[29]).

The respondent says that it was also correct for the sentencing judge to state that “it is clear that [Mr Button] was driving the bus at an excessive speed, not only as it entered the roundabout, but as it was travelling through the roundabout before it reached what might be said to be the sharper curve that he needed to negotiate”.

It is noted that the impugned statement (italicised below) was made in the context of his Honour’s consideration of Mr Button’s moral culpability, where the sentencing judge observed that:

The respondent notes that the tipping threshold was not uniform throughout the path to the final position of the bus because of the roundabout’s irregular (elliptical) shape and that the precise point where the rollover occurred is not known and nor is the tipping threshold at that point. The respondent accepts that the initial tipping threshold of 31km/h at the entry to the roundabout was not the most appropriate comparator by which to assess the significance of the measured speed of 56.48km/h a little further into the roundabout but says that, given that the exact location of where the bus rolled is not known, and in light of the uncontroverted fact that it did so, the earlier tipping point was not an irrelevant reference when considering Mr Button’s speed. The respondent says (which is hardly controversial since Mr Button accepts that he plainly drove too fast) that he drove sufficiently quickly to roll the bus while navigating a roundabout, where both the road rules and the shape of the roadway required him to drive at a lower speed.

To the extent that the sentencing judge’s description of the traffic expert’s conclusions does not reflect the totality of that evidence, the respondent points out that his Honour’s reasons were delivered ex tempore at the conclusion of the evidence and submissions, noting that reasons for sentence delivered ex tempore may “lack the order and precision of language that can be incorporated into a judgment after the luxury of time for consideration, refinement of expression, and polishing” (see Rotner v R [2011] NSWCCA 207 at [57] (per Simpson J, McClellan CJ at CL and Fullerton J agreeing); R v Speechley [2012] NSWCCA 130; (2012) 221 A Crim R 175 at [34]-[35]).

If, contrary to the respondent’s submissions, error is found, then the respondent argues that it had no capacity to affect the exercise of the sentencing discretion. It is noted that there was no dispute that Mr Button drove too quickly to be able safely to negotiate the roundabout; that Mr Button agreed that the bus “travelled too quickly through the roundabout” ([29]); that the braking and acceleration rates he applied in the roundabout were “excessive, unnecessary and aggressive” ([33]); and that, immediately after the crash, he admitted to police “I guess I was just going too fast” ([44]). The respondent says that the rolling of the bus indicates that Mr Button drove faster than the tipping threshold at some point very shortly after the location where he was recorded travelling at 56.48 km/h and points out that Mr Button accepted in evidence that to overturn the bus, he had to be driving at a speed significantly higher than the safe speed for the roundabout.

The respondent says that the sentencing judge’s finding that it is very clear that Mr Button engaged in risk taking behaviour, and that is the only explanation for the speed at which he attempted to negotiate the roundabout, was well open to his Honour. His Honour’s ultimate conclusion (that Mr Button abandoned his responsibility to ensure his passengers’ safety and his moral culpability was high) was also well supported on the evidence.

We do not accept the criticism that the sentencing judge was “fixated” on the speed of 31km/h (see AT 7). Mr Lennon calculated the tipping threshold at the entry to the roundabout as 31km/h. True it is, that his Honour did not record in his reasons that Mr Lennon had calculated higher tipping thresholds at other points on the roundabout. However, the fact that his Honour did not refer to all of the estimated tipping points on the roundabout does not bespeak error.

As the respondent notes, the precise speed at which the bus entered the roundabout is not clear. It is known that the bus was recorded as travelling at 52km/h a few minutes before entering the roundabout. Mr Button said that he had disengaged cruise control and coasted up to the roundabout but does not suggest that he had braked before entry to the roundabout. As the bus did not roll on entry to the roundabout, it may be inferred that the speed of the bus had slowed (from the 52km/h last recorded before the roundabout) on the approach, or at the entry, to the roundabout but by how much is not known. If so, this is consistent with the expert’s conclusion that Mr Button must have accelerated at a level towards the aggressive end of driving in order to reach the recorded highest speed on the roundabout that he did of 56.48km/h.

We accept that comparison of the highest recorded speed (56.48km/h) with the 31km/h tipping point at the entry to the roundabout was, as the respondent accepts, not the relevant comparison. Rather, the appropriate comparison with the highest recorded speed would have been with the estimated tipping point at or close to that location. Mr Button accepts that he was travelling too fast for the conditions but submits that it was not twice as fast as what was likely to result in the bus overturning (after entry into the roundabout) (see AT 8.29). However, what is abundantly clear is that the speed at which Mr Button negotiated the right hand curve of the roundabout, after entering from the left hand turn, was excessive.

Both parties accept that there is some doubt as to whether the statement that Mr Button impugns was a “finding” as such. However, at the least it was a statement in the context of considering his moral culpability. The statement that at one point Mr Button was travelling within the roundabout at nearly twice the estimated rollover tipping point speed would be accurate if qualified by recognition that the tipping point speed there referred to was that at the entry to the roundabout, not later when driving within it. The statement impugned by Mr Button was incomplete unless it is qualified. We again point to the ex tempore nature of the reasons and observe that some infelicity or inaccuracy of expression in such a judgment will not of itself necessarily bespeak error.

There is, therefore, some force in the complaint as to the statement at page 11 of the remarks on sentence. However, we do not accept that any error by reason of the incompleteness of the reference to the 31km/h tipping point was material. Insofar as it informed his Honour’s assessment that Mr Button’s moral culpability was very high, that assessment was not only open to his Honour but well founded. Mr Button clearly drove at excessive speed on the roundabout. He did so having taken significantly in excess of his prescribed opioid medication and knew that this had the capacity to affect his driving ability and that this posed a danger on the roads; and he did so when he had responsibility for his 35 passengers. There is no doubt that he abandoned his responsibility to ensure the safety of his passengers and that he engaged in risk-taking behaviour. Those conclusions are amply supported by the evidence (even leaving aside the comments made to the passengers by Mr Button during the drive and on the roundabout to which reference has already). Further, the Agreed Facts establish that Mr Button ignored warnings from passengers while on the roundabout. Senior Counsel for Mr Button submits that, by then, it was too late but it is by no means clear that the evidence establishes this (see AT 9.49-10.14). The conclusion that Mr Button’s moral culpability was very high was correct even if one substitutes for the reference to 31km/h in the impugned statement a reference to the higher tipping points later in the roundabout (i.e., even though at the point at which the bus was travelling at 56.48km/h this was not twice the speed of the estimated tipping point at that location).

Insofar as Mr Button complains that this “apparent” finding informed his Honour’s assessment of the objective seriousness of the offending, we again do not consider that any error as to the relevant tipping point was material. On any view of the facts (as set out in some detail above) the offending was objectively very serious.

We have thus concluded that, to the extent that there was an erroneous factual finding that the highest recorded bus speed was nearly twice the estimated rollover tipping point speed of 31km/h, it was not a material error. Ground 2 should be dismissed.

Mr Button does not contend that the individual indicative sentences were inappropriate, although he submits that they may be regarded as “relatively heavy” sentences for the offences.

He points out that the offences charged under s 52A (i.e., the dangerous driving occasioning death) are not the aggravated offences under that section. The essence of the dangerous driving was his affectation (to an indeterminate degree) by the Tramadol he had ingested, the manner in which he immediately approached the roundabout, and the speed at which he attempted to negotiate the roundabout.

Mr Button points out that, while his earlier driving was criticised by some passengers, it was generally compliant with the speed limit. He says that the prevailing speed limit at the relevant portion of the roadway was 80km/h and notes that, over the 12km trip from the wedding reception to the roundabout, the speed of the bus had not materially exceeded applicable speed limits. Thus, Mr Button says that this is not a case in which the whole course of driving from the wedding reception to the roundabout is capable of increasing his moral culpability. (We interpose to note that there is no challenge to his Honour’s finding that Mr Button’s moral culpability was very high, nor as to the objective seriousness of the offending.)

Mr Button emphasises that his criminality involves a single act on his part, albeit that the consequences of that act were catastrophic (in that regard no doubt referring to what was said in Davidson v R [2022] NSWCCA 153; (2022) 300 A Crim R 214 (Davidson), to which we refer in due course).

Beyond the matters raised in Grounds 1 and 2 (which have been considered above), Mr Button accepts that he cannot point to specific errors in his Honour’s reasoning toward the aggregate sentence imposed (though suggesting that those errors may provide some part of the explanation for the sentence). Rather, he argues that his Honour must have erred in the degree of notional accumulation applied in reaching the result that he did. Mr Button accepts that his Honour was not required to specify any particular degree of accumulation (referring to Benn v R [2023] NSWCCA 24; (2023) 305 A Crim R 550 (Benn)) and that the scheme of the aggregate sentence legislation means that it will not be possible arithmetically to align the ultimate aggregate sentence with the individual indicative sentences (referring to Kleindienst v R [2020] NSWCCA 98).

Mr Button accepts that the ultimate question is whether the aggregate sentence is excessive in the sense that it is unreasonable or plainly unjust (citing Benn at [116] per Gleeson JA (N Adams and Ierace JJ agreeing)). That said, Mr Button notes that the indicative sentences form part of the reasoning process that culminates in the aggregate sentence (referring to Davidson) and that the “potentials for accumulation” are open to examination to determine whether the aggregate sentence represents a sound exercise of the sentencing discretion (citing R v Brown [2012] NSWCCA 199 and Beale v R [2015] NSWCCA 120).

Mr Button notes that, as a matter of principle, a sentencing judge is required to apply a degree of notional accumulation to each of the offences (R v Janceski [2005] NSWCCA 288) (and we note that his Honour here expressly acknowledged that a reasonable degree of notional accumulation was appropriate in this case – see remarks on sentence at p 14).

Reference is made to Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 (Nguyen) at [64]. There, the majority in the High Court noted that “the object of the sentencing exercise is to impose individual sentences that, so far as possible, accurately reflect the gravity of each offence while at the same time rendering a total effective sentence which, so far as possible, accurately reflects the totality of criminality comprised in the totality of offences” and that this is an exercise which involves a significant measure of discretionary moderation and accumulation of individual sentences according to the particular circumstances of each case (about which sentencing judges might take different views). The Court said that:

Mr Button says that in this case the individual indicative sentences were relatively severe and hence it was appropriate that a lesser degree of notional accumulation be applied. He relies, as he did before the sentencing judge, on a survey of sentences involving multiple victims of offences under s 52A of the Crimes Act (a copy of which was appended to Mr Button’s written submissions on appeal), as a record of what has happened in the past where accumulations were imposed in respect of additional victims of s 52A offences. In this regard, Mr Button is conscious of the statements of principle by Simpson J, as her Honour then was, in DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [303]-[304] (approved by the High Court in Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54]) as to the proper use that can be made of sentencing patterns. (It is not necessary here to repeat that caution. Ultimately, their use may provide guidance but they do not fix the boundaries within which future sentences are to be set.)

Mr Button emphasises that the purpose of an aggregate sentence is to meet the total criminality of the offender. He argues that, in a case where his moral culpability remains the same (in respect of each of the offences) and has been assessed in determining the indicative sentences, it would be contrary to principle to revisit that moral culpability in determining the degree of notional accumulation. Pausing here, there is no indication that the sentencing judge did engage in any double counting.

Complaint is made that, in the present case, the sentencing judgment is entirely opaque as to the degree of notional accumulation (though there is no separate complaint as to adequacy of reasons). Mr Button nevertheless contends that it must be greater than that urged on his behalf. In particular, he argues that cases such as Davidson (where the aggregate sentence after appeal involved an accumulation of 9 years 6 months encompassing three additional manslaughter offences, one additional aggravated s 52A(4) offence and the s 53 counts) and Moananu v R [2022] NSWCCA 85; (2022) 297 A Crim R 513 (Moananu) (where the aggregate sentence involved accumulation of 4 years 3 months encompassing an additional manslaughter offence and an additional aggravated s 52A(4) offence) demonstrate that his Honour has applied an excessive degree of notional accumulation to the present offences (which Mr Button emphasises were not aggravated offences).

Mr Button disavows any suggestion that there is a mathematical formula to be applied. Rather, he advocates the approach set out by N Adams J in Davidson at [330]; [333]. There, her Honour gave the example of application of the totality principle to the scenario where a driver acting in a criminally negligent manner collided with a school bus and killed 20 children, saying that the application of the totality principle may lead to a result in which there is a relatively short portion of the total sentence attributable to each additional death. Her Honour noted that the one act of criminally negligent driving had catastrophic consequences but contrasted this with an offender embarking on a deliberate series of discrete offences.

Mr Button argues that, as catastrophic as the consequences were of his dangerous driving, the aggregate sentence imposed was manifestly unjust and unfair.

The respondent notes that the sentencing judge took into account both the catastrophic consequences of the crash (the number of lives lost, the extent and number of the injuries caused, and the devastation, pain and suffering expressed in the victim impact statements of the surviving passengers and the families of the deceased) and that Mr Button’s liability for 35 offences derived from one act of driving. The respondent argues that, given the need to impose a sentence that acknowledges the harm caused to so many victims, the degree of notional accumulation that his Honour applied cannot be said to be manifestly excessive.

The respondent submits that the aggregate sentence was not manifestly excessive, pointing to: the number of offences (and the maximum penalties for those offences), the loss of life and serious physical injury (of varying degrees) suffered by the passengers, including the ongoing debilitating effects suffered by the grievously injured passengers, and Mr Button’s duty, as a bus driver with responsibility for the safety of his passengers, to drive in an exemplary manner.

The respondent says that, because the victims were the very passengers who Mr Button was engaged to convey, this was not a matter of “happenstance or chance” that so many lives were lost and adversely affected, in the way that it might potentially have been viewed had he been driving a car that collided with a bus (cf Wooldridge (2015) 123 SASR 422; (2015) 254 A Crim R 115 and the example given in Davidson at [330]).

The respondent also emphasises that, by reason of his recent employment history and the concerns voiced by his doctors, Mr Button well knew how serious the heavy use of Tramadol was in relation to the performance of his duties as a bus driver, and had been reminded by his doctor of the importance of keeping to the daily maximum recommended by the pain specialist; yet he knowingly consumed a significantly greater quantity of Tramadol than his daily maximum (knowing that using large amounts of Tramadol made him a danger on the roads). The respondent also points to the risk-taking behaviour in which Mr Button engaged, including telling his passengers “this next part’s going to be fun” (a statement that likened the experience of the bus driving onto the freeway to a rollercoaster).

The respondent accepts that Mr Button only drove at a dangerous speed at the point of the roundabout but says that his driving ability was impaired by Tramadol for the entire journey, during which his manner of driving was observed to be erratic (noting that this frightened his passengers and prompted some to put on their seatbelts and comment on his speed).

The respondent notes that the sentence imposed on Mr Button was required to reflect the purposes of sentencing in s 3A of the Sentencing Procedure Act, including ensuring Mr Button was adequately punished for the offences, general and specific deterrence, making Mr Button accountable for his actions, denouncing his conduct, and recognising the harm done to the victims and the community.

The respondent points to the victim impact statements of the family members of the deceased passengers, which his Honour properly took into account on the basis that the harm to the families is an aspect of the harm done to the community (referring to s 30E(3) of the Sentencing Procedure Act), noting that because the passengers were connected through the bride and groom and not strangers to each other, particular communities in Singleton and Victoria have suffered devastating effects from the loss of these lives. The respondent also refers to the victim impact statements of the surviving passengers which articulate the serious ongoing effects of the trauma of the crash and its aftermath, noting that those who were less severely injured nevertheless provided assistance to the dying and grievously injured, many of whom were their loved ones and friends.

The respondent submits that it was necessary for the aggregate sentence to reflect a substantial degree of notional accumulation with respect to each offence, in order to recognise the dignity of each of the deceased victims and to acknowledge the suffering of each of the injured victims, with partial notional concurrence to reflect the fact that the offences were all the consequence of one act (cf Moananu at [172]; Davidson at [38], [333]). The respondent rejects the proposition that Davidson and Moananu demonstrate that the degree of notional accumulation was excessive, arguing that the number of offences for sentence in this matter means that mathematical comparisons to the quantum or degree of accumulation in other decided cases are of no practical assistance. In that regard, the respondent submits that, while Mr Button’s survey of previous cases supports the uncontroversial proposition that some degree of partial accumulation is appropriate, it is incapable of providing more specific guidance.

The respondent further submits that Mr Button’s argument that longer indicative sentences should result in less notional accumulation carries little weight in the context of 35 offences, where the lengths of the individual indicative sentences play a more limited role in the determination of the aggregate sentence (referring to Nguyen at [64]).

The respondent submits that his Honour identified and applied the correct principles in imposing the aggregate sentence and that, in a case involving so many indicative sentences, the range of permissible sentences open in the exercise of the sentencing discretion must necessarily be great.

The principles to be applied when considering whether a sentence is manifestly excessive were not in dispute. They were summarised by R A Hulme J in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]:

In relation to aggregate sentences, in Lee v R [2020] NSWCCA 244, Beech-Jones CJ at CL, as his Honour then was, said (at [32], Payne JA and Fagan J agreeing):

In our opinion, Mr Button has not discharged the heavy burden of establishing that the aggregate sentence imposed was beyond the range of sentences properly available to the sentencing judge in the exercise of his discretion, nor that it was disproportionate to the totality of his criminality, so as to warrant appellate intervention.

Having assessed the objective seriousness of the offending and the very high moral culpability of Mr Button, as well as Mr Button’s subjective case (which established remorse, prior good character and likely more onerous conditions of custody), his Honour properly took into account the harrowing victim impact statements.

His Honour correctly recognised that there should be some reasonable notional accumulation (see Moanunu at [172] where Hamill J allowed a “reasonable” amount of notional accumulation “to recognise the suffering and individual dignity of the … separate victims”).

His Honour properly took into account the purposes of sentencing, including general and specific deterrence, denunciation and, importantly in the present case, recognition of the harm done to the victims and the community. As the respondent points out, the direct impact of Mr Button’s offending extends to those involved in the wedding and those who attended the crash scene but also has had an impact (through the loss of so many young lives) on the community more broadly.

When the consequences to the victims are considered (and it is for this reason that we have included the details of the survivors’ injuries in these reasons, which understandably were not recited in the ex tempore reasons), it can readily be understood that the offending, though arising from a single act of criminality, required a reasonable degree of accumulation, as his Honour recognised in his reasons for sentence. The precise quantum of that notional accumulation was not required to be specified by his Honour, as Mr Button concedes.

Mere disagreement with his Honour’s aggregate sentence would not be sufficient to warrant appellate intervention (as Bell CJ made clear in TH v R). What is required is that the sentence be shown to be unreasonable or plainly unjust. Mr Button has not established that it is. Insofar as the indicative sentences are relied on as an integer in the aggregate sentencing process, they totalled some 78 years. It can therefore be seen that a significant degree of concurrence is allowed by the aggregate sentence that was imposed.

We do not accept the contention by Mr Button that the “relative” severity of the indicative sentences warranted a lesser degree of accumulation than that which is reflected in the aggregate sentence. The indicative sentences are conceded to have been appropriate. The complaint was as to the aggregate sentence. This was a case where there were 35 offences and where the consequences of that offending have been devastating for numerous families and for the communities in which the victims live (or lived) and work (or worked). His Honour was unable to gain much assistance from the survey of cases which had been provided to him. Given the unique circumstances of this case that is understandable.

True it is that this was a single act of offending; but it was not mere happenstance or chance. Mr Button had the responsibility (and duty) to ensure the safety of passengers, yet he engaged in undoubtedly risk-taking behaviour, having consumed significantly higher amounts of Tramadol than he knew was the daily maximum, knowing that this had the capacity to affect his ability to drive and made him a potential danger on the roads. The impact of this offending is incalculable and ongoing. Numerous families have been devastated. Ten families have lost a member, two young children have been orphaned, five adults have lost their intimate partners, one survivor has lost not only his wife but their only child. The survivors all suffered physical, and some mental, injuries as a result of the crash (as outlined earlier). Some of those impacts are ongoing. The grief expressed in the victim impact statements is palpable. Their lives were forever altered by Mr Button’s decision to engage in risk-taking behaviour.

The aggregate sentence was not manifestly excessive. Ground 3 is not established.

For the above reasons, leave to appeal will be granted and the appeal dismissed.

The Court makes the following orders: