Rubio v Ohlmus

Case [2016] ACTSC 84


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Rubio v Ohlmus

Citation:

[2016] ACTSC 84

Hearing Date:

7 April 2016

DecisionDate:

11 May 2016

Before:

Refshauge J

Decision:

1.   The appeal is upheld.

2.   The finding that Alexandra Rubio is guilty of the offence of driving with a prescribed drug in her blood is confirmed.

3. Under s 17 of the Crimes (Sentencing) Act 2005 (ACT) the charge is dismissed.

Catchwords:

APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from Magistrates Court – appeal against sentence – specific error – failure to consider non-conviction order – circumstances need not be exceptional – possible impact on employment – no previous convictions – physical injuries – guilty plea

APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from Magistrates Court – appeal against sentence – specific error – failure to give reasons – failure to address subjective matters – failure to take into account relevant consideration – failure to consider guilty plea

APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from Magistrates Court – appeal against sentence – manifestly excessive – principles applying to appeals against manifestly excessive sentence – reasonableness – sentence unreasonable in light of further evidence

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – driving with a prescribed drug in the blood – re-sentencing – non-conviction order

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – unrepresented litigant – unrepresented at sentencing proceedings – no legal advice – failure to ask whether offender wished to obtain legal advice – judicial assistance – duty to explain possible sentencing options – duty to ensure unrepresented litigant aware of substantive and procedural rights – litigant deprived of opportunity to provide information to court

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT), ss 17, 35,

Magistrates Court Act 1930 (ACT), ss 214, 214(3)(b), 216, Pt 3.10, Div 3.10.2
Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 15AA, 20(1), 34

Court Procedures Rules 2006 (ACT), rr 5111(1), 5193

Cases Cited:

Arman v Wall [2008] ACTSC 61

Ashdown v The Queen (2011) 219 A Crim R 454
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Balthazaar v The Queen [2012] ACTCA 26
Commissioner of Taxation v Baffsky (2001) 192 ALR 92
Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
Dinsdale v The Queen (2000) 202 CLR 321
Ellis (1993) 68 A Crim R 449
Einfeld v The Queen (2010) 266 ALR 598
Griffiths v The Queen (1977) 137 CLR 293
Grooms v Toohey (2012) 7 ACTLR 1
Harrison v Taws [2009] TASSC 33
Hawkins v Hawkins (2009) 3 ACTLR 210
Haysdale Nominees Pty Ltd v Shepherd (1998) 98 A Crim R 435
Higgs v The Queen [1999] FCA 1562
Hili v The Queen (2010) 242 CLR 520
House v The King (1936) 55 CLR 499
Kent v Arley [2007] ACTSC 66
Lancaster v Hyde [2016] ACTSC 50
Lumby v Cooper [2008] ACTSC 53
Maher v Carpenter (2012) 7 ACTLR 216
Mayen v Ryan (No 2) [2014] ACTSC 33
O’Brien v…

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AGLC
Rubio v Ohlmus [2016] ACTSC 84
Case
[2016] ACTSC 84
Decision Date

CaseChat Overview and Summary

Alexandra Rubio appeals against her sentence for driving with a prescribed drug in her blood. The appeal was heard in the Supreme Court of the Australian Capital Territory. The appellant was caught driving with a blood alcohol level above the legal limit, for which she pleaded guilty. She was sentenced to a fine and a disqualification from driving. The appellant contends that the sentence was manifestly excessive, the sentence was not reasonable, and that the magistrate failed to consider a non-conviction order and provide reasons for the sentence. The appellant also argues that she was unrepresented at the sentencing proceedings and that the magistrate failed to ensure she was aware of her rights and the possible sentencing options. The court was required to determine whether the sentence was manifestly excessive and whether the magistrate erred in not considering a non-conviction order or in failing to provide reasons for the sentence. The court also had to consider whether the magistrate failed in his duty to ensure that the appellant, who was unrepresented, was aware of her rights and the possible sentencing options.

The court found that the sentence was manifestly excessive, as the appellant had no previous convictions, and the physical injuries she had suffered during the incident were not severe. The court found that the magistrate did not consider a non-conviction order and did not provide reasons for the sentence. The court found that the magistrate did not ensure that the appellant, who was unrepresented, was aware of her rights and the possible sentencing options. The court found that the appellant was deprived of the opportunity to provide information to the court that could have affected the sentence. The court held that the appeal was valid and that the sentence was manifestly excessive. The court held that the magistrate failed to consider a non-conviction order and provide reasons for the sentence. The court held that the magistrate failed in his duty to ensure that the appellant, who was unrepresented, was aware of her rights and the possible sentencing options.

The appeal is upheld, and the finding of guilt is confirmed. The charge is dismissed under s 17 of the Crimes (Sentencing) Act 2005 (ACT).

Orders

Orders of the court

1. The appeal is upheld.

2. The finding that Alexandra Rubio is guilty of the offence of driving with a prescribed drug in her blood is confirmed.

3. Under s 17 of the Crimes (Sentencing) Act 2005 (ACT) the charge is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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