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
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
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.