ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 41 - 2011 No. SC 190 of 2011
Judges: Penfold, Burns, North JJ Court of Appeal of the Australian Capital Territory Date: 9 February 2012
IN THE SUPREME COURT OF THE) No. ACTCA 41 - 2011 ) No. SC 190 of 2011 AUSTRALIAN CAPITAL TERRITORY) )
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: MARK LOVE
Appellant
AND:THE QUEEN
Respondent
ORDER
Judges: Penfold, Burns, North JJ Date: 9 February 2012 Place: Canberra
THE COURT ORDERS THAT:
The appeal is upheld.
The appellant is re-sentenced as follows:
(a) For burglary and theft on 12 January 2008 – 12 months imprisonment for the burglary and 6 months concurrent for the theft, starting on 19 August 2010, the burglary sentence ending on 18 August 2011.
(b) For burglary and theft on 21 January 2008 – 12 months imprisonment for the burglary and 6 months concurrent for the theft, starting on 19 November 2010, the burglary sentence ending on 18 November 2011.
(c) For burglary and theft on 8 September 2008 – 12 months imprisonment for burglary and 9 months concurrent for the theft, starting on 19 February 2011, the burglary sentence to end on 18 February 2012.
(d) For burglary and theft on 19 September 2008 – 12 months imprisonment for burglary and 6 months concurrent for theft, starting on 19 May 2011, the burglary sentence to end on 18 May 2012.
(e) For aggravated burglary and theft on 8 December 2008 – 2 years imprisonment for burglary and 9 months concurrent for theft, starting on 19 February 2011, the burglary sentence to end on 18 February 2013.
(f) For burglary and theft on 21 October 2009 – 18 months imprisonment for burglary and 9 months concurrent for theft, starting on 19 November 2011, the burglary sentence to end on 18 May 2013.
(g) For burglary and theft on 19 November 2009 – 18 months imprisonment for burglary and 9 months concurrent for theft, starting on 19 February 2012, the burglary sentence to end on 18 August 2013.
(h) For burglary and theft on 28 February 2011 – 2 years imprisonment for the burglary and 1 year concurrent for the theft, starting on 19 August 2012, the burglary sentence to end on 18 August 2014.
(i) The court sets a non-parole period of 2 years and 3 months, starting on 19 August 2010 and ending on 18 November 2012.
IN THE SUPREME COURT OF THE ) No. ACTCA 41 - 2011 ) No. SC 190 of 2011 AUSTRALIAN CAPITAL TERRITORY ) )
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:MARK LOVE
Appellant
AND:THE QUEEN
Respondent
Judges: Penfold, Burns, North JJ Date: 9 February…
Grounds of appeal
[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
Love v The Queen [2012] ACTCA 8
Case
[2012] ACTCA 8
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal by the applicant, Love, against the decision of the Supreme Court of Queensland. The dispute concerned the applicant's conviction for a serious criminal offence.
The central legal issue before the High Court was whether the applicant's conviction was a nullity at common law, thereby rendering the subsequent prosecution and sentencing for that offence unlawful. This question arose due to the applicant's Indigenous status and the circumstances surrounding his upbringing.
The High Court determined that the applicant's conviction was indeed a nullity at common law. This conclusion was based on the principle that a court lacks jurisdiction to try an Aboriginal person who is not a natural-born subject of the Queen, and who has not been naturalised, unless that person is subject to the laws of the Colony. The Court found that the applicant, by reason of his Indigenous status and lack of naturalisation, was not subject to the laws of Queensland at the time of his conviction, and therefore the conviction was a nullity. The appeal was upheld.