Rubio v Ohlmus [2016] ACTSC 84

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

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.

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

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

Arman v Wall [2008] ACTSC 61

Ashdown v The Queen (2011) 219 A Crim R 454

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223

Balthazaar v The Queen [2012] ACTCA 26

Commissioner of Taxation v Baffsky [2001] NSWCCA 332; (2001) 192 ALR 92

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Ellis (1993) 68 A Crim R 449

Einfeld v The Queen [2010] NSWCCA 87; (2010) 266 ALR 598

Harrison v Taws [2009] TASSC 33

Haysdale Nominees Pty Ltd v Shepherd (1998) 98 A Crim R 435

Higgs v The Queen [1999] FCA 1562

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520

House v The King [1936] HCA 40; (1936) 55 CLR 499

Kent v Arley [2007] ACTSC 66

Lancaster v Hyde [2016] ACTSC 50

Lumby v Cooper [2008] ACTSC 53

Mayen v Ryan (No 2) [2014] ACTSC 33

Oliver (1980) 7 A Crim R 174

Oliver v Tasmania [2006] TASSC 95

Pettit v Dunkley (1971) 1 NSWLR 376

Proud v Sladic [2014] ACTCA 26

R v Bloomfield (1998) 44 NSWLR 734

R v Morse (1979) 23 SASR 98

Shero v Hinton [2010] ACTSC 73

Shrubsole v Rodriguez (1978) 18 SASR 233

Stark v Plank [2010] WASC 74

Stoker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449

Thompson-Davis v The Queen [2013] NSWCCA 75

Trueman v Tasmania [2009] TASSC 29

Vavoulas v Austin [2014] ACTSC 282

Wanambi v Thompson [2002] FCA 1080; (1994) 120 FLR 243

Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

Emeritus Professor C Heather Ashton, "Pharmacology and effects of cannabis: a brief review" (2001) 178 British Journal of Psychiatry 101

Dr John Lewis, "Clinical and medico-legal implications of drug testing for cannabis" (2009) 7 National Cannabis Prevention and Information Centre Bulletin,

1. Early in the morning of Sunday 10 May 2015, Alexandra Rubio, the appellant, was driving south on the Barton Highway at Kinlyside in the ACT.

2. She was driving through an intersection where a green traffic light was showing in her direction, when she was hit on the right side of her vehicle by another vehicle that had entered the intersection against a red traffic light.

3. Ms Rubio was taken to hospital where, as required under s 15AA of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the Alcohol and Drugs Act), a registered nurse took a sample of her blood, which subsequently, on analysis, confirmed the presence of Delta-9-tetrahydrocannabinol, a prescribed drug, commonly known as THC, the active ingredient of cannabis.

4. Ms Rubio was summonsed for an offence under s 20(1) of the Alcohol and Drugs Act that she, being a first offender, did have, within the relevant period, a prescribed drug in her blood. The maximum penalty for the offence is 10 penalty units (that is a fine of $1500) and a default disqualification from holding or obtaining a driver licence for three years, reducible by the court to a minimum of 6 months (s 34 of the Alcohol and Drugs Act).

5. She appeared in court unrepresented on the first return date of the summons and entered a plea of guilty.

6. The learned Magistrate convicted her, fined her $300, with court costs of $75, and reduced the default disqualification to which she was automatically liable to the minimum period of six months.

7. Ms Rubio has now appealed against the sentence imposed.

8. Jurisdiction is conferred on this Court by Pt 3.10 of the Magistrates Court Act 1930 (ACT) to hear appeals from the Magistrates Court, including appeals against sentences imposed by that Court and Div 3.10.2 regulates a sentence appeal.

9. I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151, the principles applicable to such appeals. They may be summarised as follows.

10. Sentences imposed in the Magistrates Court are not to be set aside simply because I, on hearing the appeal, conclude that I might have imposed a different sentence. I may uphold the appeal and substitute a sentence for the original sentence if I am satisfied that the exercise of the sentencing discretion in the Magistrates Court was affected by a specific error, but only if I, in re-exercising the sentencing discretion, consider that a different sentence is appropriate.

11. Specific errors may be errors of law, errors of fact, taking account of irrelevant or extraneous considerations or failing to take account of relevant or material considerations. If I find specific error but the original sentence nevertheless appears to be appropriate, I should dismiss the appeal rather than allow the appeal and reimpose the same sentence. Even if I cannot identify a specific error, I may uphold the appeal and substitute another sentence for the original sentence if I find the sentence to be manifestly excessive, unreasonable or plainly unjust or plainly wrong.

13. Under s 216 of the Magistrates Court Act, the filing of a Notice of Appeal stays the enforcement of the sentence or penalty the subject of the appeal. That often has to be addressed at the conclusion of the appeal.

14. The appeal notice was filed on 2 October 2015. It pleaded one ground of appeal, namely that the sentence is manifestly excessive.

15. It was, however, amended under r 5111(1) of the Court Procedures Rules 2006 (ACT) to add the following additional grounds, namely specific errors of the kind referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499, as follows:

(a) Her Honour erred by failing to give reasons for the sentence imposed;

(b) Her Honour erred by failing to consider whether to make a non-conviction order;

(c) Her Honour erred by failing to take into account relevant consideration

The matters required to be taken into account in subsection 17(3) of the Crimes (Sentencing) Act 2005.

16. The Notice of Appeal, however, also stated that the appellant will seek to put further evidence before the court.

17. In accordance with r 5193 of the Court Procedures Rules 2006 (ACT), an application has now been made by Application in Proceedings, returnable at the hearing of the appeal, for the reception of certain further evidence, details of which have been included in an Affidavit filed in support of the application.

18. The receipt of further evidence is regulated by s 214 of the Magistrates Court Act. I have described in Grooms v Toohey (2012) 7 ACTLR 1 at 8-10; [35]-[37], the principles applicable to the admission of fresh evidence and, at 10-12; [41]-[52], the principles as to the effect that the admission of such further evidence has in the appeal.

19. In summary, such evidence must be admitted, inter alia, if the parties consent. The effect of the admission of further evidence is that the appellate court must consider whether a different sentence should, in the light of the further evidence, have been imposed. If it comes to the view that it should have been, then the sentencing discretion is enlivened and the sentencing proceedings must be re-opened.

20. These are the principles that I shall apply in this case.

21. As noted above (at [3]), Ms Rubio was taken to hospital. Two of the items of further evidence arise out of this. One was the discharge summary from The Canberra Hospital, the other was a report from Matrix Physiotherapy & Sports Clinic which had been treating her since her hospitalisation.

22. The third item of evidence was a reference from her employer, which made particular reference to the effect that the offence and any sentence imposed would have on her employment.

23. As also noted above (at [5]), Ms Rubio was unrepresented in court and apparently had no legal advice before appearing. She appeared on the return date of the summons, 30 September 2015. No adjournment was sought or offered. In particular, the learned Magistrate did not inquire as to whether Ms Rubio would wish to obtain legal advice nor, until actually sentencing her, indicate the possible penalties to which she may be liable so as to suggest she might obtain some relevant material, such as the further evidence.

24. In any event, the respondent very properly consented to the admission of the fresh evidence, which rendered it admissible under s 214(3)(b) of the Magistrates Court Act. I admitted the evidence.

25. The facts have been set out in a summary way above (at [1]-[3]). It is, however, appropriate that I deal with them in a little more detail.

26. Ms Rubio was, on 10 May 2015, returning home from a birthday party at about 12.25 am. She was alone in the car, driving along the Barton Highway, approaching the intersection with Kuringa Drive and Clarrie Hermes Drive. The traffic lights at the intersection were showing green in her direction as she entered it.

27. As she was passing through the intersection, her car was hit by a station wagon driven from Kuringa Drive through red traffic lights. The side of her vehicle was struck heavily on the right front, about one metre from Ms Rubio's driver side door. Ms Rubio's vehicle was forced into a spin, coming to rest over the median strip on the north eastern side of the intersection. The impact of the collision caused the front right wheel, driveshaft and brake and suspension assemblies of Mr Rubio's vehicle to detach completely, the parts coming to rest some metres from the rest of her car. Debris from both vehicles was strewn throughout the intersection, so heavy was the impact of the collision.

28. Ms Rubio was briefly rendered unconscious following the collision, perhaps by deployment of the airbags in her car, but she was helped to regain consciousness by members of the public who attended to her before the arrival of an ambulance and paramedics.

29. The other driver was uninjured and apologised for what happened. He was tested for alcohol in his breath and charged with dangerous driving and driving with the prescribed concentration of alcohol in his breath.

30. When police arrived, Ms Rubio was subject to a breath screening test. It proved negative. It appears that police did not then administer a drug screening test.

31. Ms Rubio was taken to The Canberra Hospital where she was admitted and remained as an inpatient for two days.

32. Shortly after she was admitted, a sample of her blood was taken. It was subsequently analysed in an approved laboratory and found, on analysis, to have Delta-9-tetrahydrocannabinol (THC) present in it.

33. Ms Rubio suffered bruising and cuts to her left knee, bruising and swelling to her right cheek and muscle stiffness and pain to her right ankle, head and neck, consistent with a seat-belt injury. She had little memory of the collision. She was treated with analgesics and admitted for observation.

34. She commenced treatment with a physiotherapist on 2 June 2015 for a right Achilles tendonopathy and pain and contusion in the left knee patella-femoral joint. She continued with treatment until early October 2015. She appears to have recovered fully from her injuries.

35. Her motor vehicle was written off as a result of the collision.

36. As noted above (at [4]), Ms Rubio was summonsed to appear in the Magistrates Court on 30 September 2015 on the charge of driving with a prescribed drug in her blood.

37. Ms Rubio is 25 years old. She appears to engage in fitness activities, having completed a 5 km run and a 2 hour trek over uneven ground shortly after her final physiotherapy treatment.

38. Ms Rubio is employed as a co-ordinator for the YMCA in its Outside School Hours Care program at a local primary school. She has direct responsibility for 55 children and manages 7 staff each day.

39. Her employer said that she was remorseful and deeply regretted the events leading to her being charged with the offence. Her behaviour in using the cannabis, though not, she said, on the day of her driving, was said to be out of character.

40. Because of the requirement that employees working with children undertake a Police Check each year, a criminal conviction may impact on her ability to obtain a Working with Vulnerable People Card, a necessary pre-condition for her employment. A loss of licence would also have a negative impact on her work, for she is required to travel at least 3 times a week in the course of her employment.

41. She is regarded by her employer as a productive, supportive and valued member of his school community and that of her employer.

42. She has not been found guilty of any other criminal offence, which, of course, includes traffic offences.

43. I have noted above (at [5]-[6]), that the proceedings were dealt with to finality on the return date of the summons.

44. Thus, the opening remarks of the learned Sentencing Magistrate are a little curious for, after reciting the charge, the transcript records, "You pleaded guilty to that charge" (emphasis added). There is no recorded answer from Ms Rubio. That is, of course, required. See Mayen v Ryan (No 2) [2014] ACTSC 33 at [107].

45. This may be a transcription error, however, for the following is then recorded, "All right, just have a seat please." I am prepared to find that Ms Rubio personally pleaded guilty before the Court, especially as this was not a ground of appeal.

46. The facts were then read out by the prosecutor and, on the basis of them, the learned Magistrate found the offence proved. She then made some comments about the evils of drink driving, the perils from which Ms Rubio had suffered. Her Honour also commented on the impairment in driving suffered by users of alcohol and drugs.

47. Her Honour asked a few questions, though not, as I indicated above (at [23]), as to whether Ms Rubio wished to obtain legal advice.

48. These questions and answers may be relevantly summarised as follows:

(a) whether she had recovered from her injuries - her last physiotherapy appointment was to be the following week;

(b) whether she had a drug problem - it was just a lapse of judgement; she was genuinely surprised by the result because she had not consumed marijuana that day; and

(c) what work she did and where she worked - outside school hours care co-ordinator and a relief teacher in Canberra.

49. Her Honour, then imposed the sentence as follows:

HER HONOUR: And I ask that because I am going to impose a fine and disqualify you from driving for a period of time, which is a mandatory disqualification for driving. And I tell you, as a first offender for having a drug in your system, the minimum disqualification is six months, the default disqualification which is what is normally imposed is three years. You can lose your licence for three years and the fines are substantial, in the thousands of dollars. So, if you lose your licence for a period you will be able to manage to get around? You'll have to.

You will be convicted, fined $300, and disqualified from driving for six months. Court costs $75. I will exempt the criminal injury compensation. And if I give you three months to pay the fine and the costs, that is $375 in total. Three months, you can save it and pay it all at once, or you can make arrangements to have it taken out of your pay, or you can pay it bit by bit. Three months to pay.

50. I shall deal with each ground of appeal separately, though there is some overlap between them. It is convenient to deal with the third ground first.

51. Section 17 of the Crimes (Sentencing) Act 2005 (ACT) permits a court to dispense with a conviction upon finding an offence proved where the conditions set out in the section are met.

52. While it is correct that the usual consequence of a finding of guilt is that a conviction will be imposed: Higgs v The Queen [1999] FCA 1562 at [3], the inclusion of s 17 into the Crimes (Sentencing) Act means that the disposition is one that is available in an appropriate case. Even though it has been said that such a disposition is exceptional in Proud v Sladic [2014] ACTCA 26 at [42], I note that that decision relied on Stark v Plank [2010] WASC 74 at [18], which was a decision on relevantly different legislation. See Commissioner of Taxation v Baffsky [2001] NSWCCA 332; (2001) 192 ALR 92 at 105; [77]. Nevertheless, I am, of course, ordinarily bound by a decision of the Court of Appeal. To say that a sentence is exceptional, however, does not mean it cannot be imposed, but only that its use should be confined to appropriate cases, not just ordinarily imposed.

53. Further, as the Court held in Proud v Sladic at [47], the sentence of the Crimes (Sentencing) Act does not require exceptional circumstances. What must be found is a circumstance or a combination of circumstances within those permitted by the section that justifies the court making the decision the section permits.

54. This case may well be considered to be exceptional. Ms Rubio had not consumed drugs on the day of her driving; she considered her position and thought that she was fit to drive. She was driving apparently quite properly in accordance with the road rules but was involved in a collision caused apparently entirely by a person who was affected by alcohol. There is no suggestion that Ms Rubio in any way contributed to the collision.

55. Ms Rubio was injured in the collision, spending two days in hospital and many months in physiotherapy treatment. Her car was a total loss and, even were she to have been fully insured, she would have suffered considerable inconvenience without the car until it was replaced and probably required to pay an insurance excess. This was extra-curial punishment of the kind to be taken into account on sentencing: Einfeld v The Queen [2010] NSWCCA 87; (2010) 266 ALR 598 at 618-21; [95]- [97].

56. While young, Ms Rubio appears to have been driving for about eight years and had no convictions.

57. She was employed and in a position where a conviction had the capacity to put her employment in jeopardy.

58. She pleaded guilty at the first appearance in court, showing remorse and facilitating the course of justice.

59. All these matters suggest, to use the words of Connolly J in Kent v Arley [2007] ACTSC 66 at [9], that Ms Rubio "is a person for whom the section [s 17 of the Crimes (Sentencing) Act] was designed".

60. In that decision, his Honour held that the failure of counsel to draw the availability of an order under s 17 of the Crimes (Sentencing) Act to the attention of the court was an error which justified the upholding of the appeal.

61. I would not go so far. In this case, however, whether such an order should, in the exercise of a discretion, be made or not, it was something to which the learned Magistrate should have adverted. In doing so, her Honour's duty to an unrepresented litigant was to explain the option to Ms Rubio and invite any relevant submissions. See Maher v Carpenter (2012) 7 ACTLR 216 at 224; [41], where I indicated that the appropriate level of judicial assistance would "include ensuring that unrepresented litigants are aware of their substantive and procedural rights".

62. Clearly that did not happen here. Ms Rubio was not only deprived of the opportunity, which she now has, of providing concrete information as to the likely effect of a conviction on her employment, she did not have her attention drawn to the possibility that she could avoid that consequence.

63. It is not incumbent on a sentencer to draw the attention of an offender to every possible sentencing option. A sentencer does not have to consider every possible sentence, including those obviously not applicable (such as a fine for an offence of murder): Wanambi v Thompson [2002] FCA 1080; (1994) 120 FLR 243 at 264. That, however, is not this case, where a non-conviction order was clearly within the range of the appropriate sentences to be imposed.

65. The giving of reasons is central to the judicial function: Wainohu v New South Wales (2011) 243 CLR 181 at 213-5; [54]-[58]. This is also important where a decision is able to be appealed: O'Brien v Noble (2012) 6 ACTLR 132 at 139-40; [20].

66. There is no doubt that it is an important obligation of sentencers in all courts to give reasons for their decisions. The point was well made by Penfold J in Lumby v Cooper [2008] ACTSC 53 at [19], when her Honour said:

19. There is clear authority for both the proposition that sentencing courts must give reasons for their decisions (see, for instance R v Thomson & Houlton (2000) 49 NSWLR 383 at [42]) and the proposition that the proper performance of this obligation in a magistrate's court must be assessed having regard to the environment in which such courts operate. As explained by Kirby P in relation to the NSW Local Courts (Acuthan v Coates (1986) 6 NSWLR 472 at 479), it would be an error for an appeal court to:

[examine] this unedited and unpunctuated record of ex tempore remarks in a busy magistrate's court, as if the transcript were a document to be construed strictly. It is the substance of what the magistrate said and did that the court is concerned with. Any other approach would impose an intolerable burden on magistrates.

67. The reference to "what the magistrate said and did" by Kirby P must, in my view, include any relevant exchange with counsel or defendant by a magistrate in the course of the hearing because it should not necessarily be expected that, in a sentencing list, a magistrate is to be required to summarise everything that has gone before, so long as it is clear that what has earlier been mentioned is taken up in an appropriate way in the reasons given: Lancaster v Hyde [2016] ACTSC 50 at [124].

68. Reasons in a busy Magistrates Court may incorporate uncontentious material by reference, rather than restating what is not in issue, as explained in Shero v Hinton [2010] ACTSC 73 at [33].

69. Care must be taken, however, that comments made by a judicial officer during submissions is a final view and not provisional view, on which appellate reliance should not be placed.

70. Nevertheless, the respondent submits that the transcript of the sentencing proceedings should be taken as a whole. To some extent, that may be accepted. As Owen J said in Haysdale Nominees Pty Ltd v Shepherd (1998) 98 A Crim R 435 at 438:

The respondent contends that the relatively brief reasons for sentence by the learned Magistrate should be read in light of the prosecuting statement of facts, the plea of mitigation made by counsel for the appellant and the pressures within which the Court of Petty Sessions operates. I have no difficulty in accepting that contention. I am also fully aware and have taken into account the pressures under which the Court of Petty Sessions operate. The Magistrates must deal with a large number of matters. The same degree of thoroughness and depth in giving reasons could not be expected in those circumstances as might be the case in some other courts where additional time for consideration and preparation is available.

71. In this case, the learned Sentencing Magistrate gave no reasons as to why it was inappropriate to make an order under s 17 of the Crimes (Sentencing) Act. While this issue was not drawn to her Honour's attention, Ms Rubio was unrepresented and should have had that option drawn to her attention. As Connolly J said in Kent v Arley, failure to consider such an option may, in appropriate circumstances, be an error of law.

72. Her Honour may have failed to refer to the section because her Honour did not address any subjective matters: there was no mention of the plea of guilty, any effect on Ms Rubio's employment (at least until after her Honour had indicated the disqualification she proposed to impose), the lack of continuing issues with drugs or alcohol, the injuries she had suffered, the losses she had sustained or any other risk factors.

73. Of course, her Honour did not need to dilate on all these matters, but even a mention of the important issues would be proper sentencing practice, though the instinctive synthesis which is the sentence cannot easily be explained: Trueman v Tasmania [2009] TASSC 29 at [33].

74. It may be that short reasons are all that are necessary for the sentencing for common offences in the Magistrates Court: Harrison v Taws [2009] TASSC 33 at [32]. Whether drug driving is yet a common offence is not yet clear. Nevertheless, it is incumbent on the court to address the critical issues in the case: Stoker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449 at [41].

75. One of the reasons explained in Pettit v Dunkley (1971) 1 NSWLR 376 at 387-8 as to why reasons are necessary is because there is a duty to preserve and facilitate any right of appeal from the decision that a party may have.

76. The reasons here did not address the issue of whether and, if so, how, the injuries suffered by Ms Rubio, the losses she sustained, the antecedents and her employment were taken into account in deciding the kind of sentence to be imposed.

77. In the light of my finding on the ground of failing to consider a non-conviction order, I consider that this ground is also made out.

78. This ground was pleaded in a way that amounted, in effect, to be the same as the ground of failing to consider whether to make a non-conviction order or not. I have already dealt with that.

79. As actually argued orally, however, it was also put that the learned Sentencing Magistrate did not consider or take into account the plea of guilty.

80. It has been held in R v Thomson (2000) 49 NSWLR 383 at 395; [52], that, unless it is expressly mentioned in the course of sentencing, an appeal court will conclude that the court below has not taken the plea of guilty into account. This approach has been adopted in this Territory in Arman v Wall [2008] ACTSC 61 at [23].

81. Sentencing is an exercise in instinctive synthesis: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 611; [75]. It is not to be expected that the particular part (if able to be identified) that a factor will play in a sentence, will be transparently explained, or capable of being so explained. It is, however, important to ensure that all the significant factors are mentioned and appropriate findings made. Where a sentence of imprisonment is not to be imposed, so that the statutory requirements under s 35 of the Crimes (Sentencing) Act to specify the discount for a plea of guilty does not apply, it may be contrary to the requirements of the instinctive synthesis to specify such a discount. It certainly is, at least, unnecessary.

82. The sentence imposed, being a fine, was one fifth of the maximum penalty. It is not appropriate to undertake a mathematical exercise to assess a penalty, but it is difficult to see how such a penalty discloses that the plea of guilty, as well as the other subjective factors, had been taken into account.

83. Insofar as the plea of guilty was asserted to be the relevant consideration, that was not considered by the learned Sentencing Magistrate, I accept that this is so and that this appeal ground is made out.

84. In addition to the specific errors to which I have referred, Ms Rubio claimed that the sentence was manifestly excessive.

85. In Hawkins v Hawkins (2009) 3 ACTLR 210 at 218-20; [39]-[54], I discussed this ground of appeal, pointing out various considerations. From that decision and more recent consideration, I summarise the position as follows:

1. A finding by an appellate court that a sentence is manifestly excessive means that "the result embodied in the sentencing judge's orders was 'unreasonable or plainly unjust'" (Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 538; [58]; House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505).

2. The appellate court needs to give careful consideration to all the circumstances of the case (Hili v The Queen at 539; [60]).

3. Intervention is required if the sentence appears to be out of all proportion to the circumstances of the crime (R v Geddes (1936) 35 SR (NSW) 554 at 556).

4. The court should, however, make full allowance for the fact that the sentencing court is tasked, primarily, with the imposition of the sentence and has had the advantage of seeing any witnesses (R v Geddes at 556).

5. Manifest excess (or inadequacy) is a conclusion that there must have been a misapplication of principle which is, or is not plainly, apparent (Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 325; Wong v The Queen at 605; [58]).

6. The conclusion that a sentence is manifestly excessive "does not admit of lengthy exposition", but it does not follow that the conclusion is fundamentally intuitive; it is not, but is revealed by a "consideration of all the matters relevant to fixing a sentence" (Hili v The Queen at 539; [59]-[60]).

7. The test must be approached rationally (Dinsdale v The Queen at 326).

8. The outcome of the consideration must be accompanied by reasons which make plain to the defendant the necessity for the sentence (Trueman v Tasmania at [33], [55]; Shrubsole v Rodriguez (1978) 18 SASR 233 at 235-6).

9. What is required is that the challenged sentence is shown to be outside the range appropriate to the objective seriousness of the offence and the subjective circumstances of the offender (Ellis (1993) 68 A Crim R 449 at 461).

10. Where an appellant asserts that a sentence is manifestly excessive, the appellate court will assume that there is no specific error so that it is futile to search for one (Hili v The Queen at 539; [61]; Thompson-Davis v The Queen [2013] NSWCCA 75 at [53]).

11. The initial consideration is always the maximum penalty prescribed for the offence (Oliver (1980) 7 A Crim R 174 at 177).

12. The next consideration will be the standards of sentencing customarily observed by sentencing courts (Oliver at 177, R v Morse (1979) 23 SASR 98 at 99).

13. In its task, the appellate court should have regard to the "collective wisdom of other sentencing judges" (Ellis at 460).

14. The seriousness of the offence and the circumstances of the offender are important factors (R v Morse at 99, Ellis at 461, Oliver v Tasmania [2006] TASSC 95 at [13]- [16]).

15. The ground requires that the sentence be shown to be manifestly excessive, not merely arguably so (Griffiths v The Queen (1977) 137 CLR 293 at 327).

16. Other sentences are not precedents but may help to show the range that is appropriate (Re Ireland (1987) 49 NTR 10 at 19, Wong v The Queen at 605; [57]).

17. Argument for the ground may require use of comparable cases, a close consideration of which may highlight excess, or sentencing statistics, but the court must recognise the significant limitations of such statistics (R v TW (2011) 6 ACTLR 18 at 27; [60]; Wong v The Queen at 606; [59]; Proud v Sladic at [41]; R v Bloomfield (1998) 44 NSWLR 734 at 739; Ashdown v The Queen (2011) 219 A Crim R 454 at 511).

86. It is sometimes said that a sentence is manifestly excessive or inadequate if no reasonable judge could have imposed it. See Balthazaar v The Queen [2012] ACTCA 26 at [61], relying on what Maxwell P said in R v Abbott (2007) 170 A Crim R 300 at 319; [14].

87. It seems to me now that such a formulation puts the test too high and is not in accordance with authority. If, as it appears, it is similar to the administrative law test of Wednesbury unreasonableness (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 at 229-30), then that is too high a threshold. There are a miniscule number of decisions of an administrative kind that are so unreasonable that no reasonable administrator could make them. Yet, the fact is that a fair number of sentencing appeals succeed on the ground of manifest excess or manifest inadequacy, certainly more than challenges to administrative decisions succeed on the ground of Wednesbury unreasonableness.

88. It seems to me a big challenge to suggest that many sentencing judges are unreasonable and, if my impression is correct, that would mean then there are more unreasonable judges than there are unreasonable bureaucrats.

89. Finally, the locus classicus of the appellate test is in House v The King and that describes the decision, and not the judge who made it, as unreasonable or unjust.

90. In this case, I can assume that the vast majority of sentences for the subject offence will be dealt with by a fine. A fine, a Good Behaviour Order or a non-conviction order would be the only options. I had no real information as to the level of the fine normally imposed.

91. That does not suggest that this sentence is necessarily manifestly excessive, but it does require more careful analysis.

92. One decision was relied upon. That was Vavoulas v Austin [2014] ACTSC 282, where the appellant was charged with the same offence. She was 20 years old, was employed as a learning support assistant at a local school and had no prior offences of which she had been found guilty.

93. She was fined $500 and disqualified from holding or obtaining a licence for 6 months.

94. The appellant was likely to lose her employment if she was convicted.

95. The circumstances there were a little more serious, since that appellant had consumed two illicit drugs the previous night and had two passengers in her car. The penalty was found to be manifestly excessive. No appeal was taken from that decision.

96. In this case, the fine is more moderate. The gross amount is not very much different, but then the maximum penalty is not particularly large.

97. The respondent submitted that the case was distinguishable because Ms Vavoulas had evidence to show that she would lose her employment were she to be convicted.

98. That issue has been resolved by the further evidence that has been admitted in this case. It is now by reference to that evidence that the sentence has to be assessed. See Grooms v Toohey.

99. I am satisfied that, in all the circumstances, the sentence imposed was manifestly excessive.

100. I have found that there were errors in the decision of the learned Sentencing Magistrate both specific errors and that the sentence was manifestly excessive.

101. In those circumstances, Ms Rubio must be re-sentenced.

102. I have earlier set out the facts of the offending, as well as the relevant personal circumstances of Ms Rubio.

103. Unfortunately, I did not have any information about the circumstances under which Ms Rubio came to be taking drugs. The drug was a form of cannabis, though I could not tell whether it was from cannabis leaf or a stronger form of the drug. Nevertheless, it is generally regarded as a less serious drug than other illicit drugs. Its impairment of drivers is the subject of a large quantity of literature and is a complex question which would require a careful consideration of expert evidence, though it has been shown to have a correlation between collisions and certain levels of consumption. I had no evidence of the level of THC in Ms Rubio's blood.

104. Emeritus Professor C Heather Ashton, "Pharmacology and effects of cannabis: a brief review" (2001) 178 British Journal of Psychiatry 101, states that the tissue elimination half-life of THC is about 7 days and complete elimination of a single dose may take up to 30 days. Dr John Lewis, "Clinical and medico-legal implications of drug testing for cannabis" (2009) 7 National Cannabis Prevention and Information Centre Bulletin, suggests that the question of how long cannabis stays in the body's system, while a reasonable question, is one that cannot be answered in a few words. He considers a large number of studies showing a range from 24 hours to 77 days, with a wide range of variables.

105. In my view, it is nevertheless, appropriate that in re-sentencing I should make a non-conviction order. I will do so.

I certify that the preceding one hundred and five [105] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.