Arbeit macht frei: - Fredrick Töben

GILMOUR J: Mr Perkins, I, for my part, would be helped if you would
stop making speeches and make submissions, rather, on the question of
sentencing.
MR PERKINS: In my submission, it is inappropriate that the appellant
should be sentenced to a term of imprisonment. I submit that, in the event
that he was to be sentenced to a term of imprisonment, that it would have
been appropriate to make an order concerning his imprisonment being
served by home detention and
SPENDER J: There is no cross-appeal or notice of contention that the
sentence was too light. Is that so?
MR MARGO: In the discretion of the court, your Honour, we have taken
that position from the beginning. On the actual sentence, we have left that
to the court.
SPENDER J: But there is no notice of cross-appeal?
MR MARGO: No.
SPENDER J: In that circumstance, is it competent for this court, Mr
Perkins, to increase the sentence?
MR PERKINS: I believe not. I would submit not.
SPENDER J: Well, in criminal appeals, for instance, it is not unusual
where a prisoner appeals against the severity of his sentence in respect of a
criminal conviction for the court of appeal to advise the appellant that a
possible outcome is that the sentence will be increased.
MR PERKINS: Yes. And that is done, if I may say so – I shouldn’t – I
can’t do anything other than speak generally – but I believe that that is
done because there are specific enabling powers in legislation which
provide that on such appeals the Court of Appeal or a Full Court may
increase the penalty.
SPENDER J: You may be right on that. I don’t know. But in any event
there is no cross-appeal and there is nothing said about the power of the
court to increase the sentence.
MR MARGO: Your Honour, the analogy is with King v House, your
Honours, where the primary judge exercised his discretion on sentencing.
Your Honours would need to be satisfied that the sentence was so
inadequate to achieve the object of a sentence for a contempt that you
decided to substitute your own discretion. You could do that ..... in my
submission, but we make no submission about that. We do submit as we
submitted to the primary judge that this is a very serious case
SPENDER J: We will
MR MARGO: and we have said in our written submissions
SPENDER J: Yes, I know. We will hear you shortly. I am just concerned
at the moment with the analogy in relation to criminal matters in here and
you can’t take me to – Mr Perkins, you can’t take me to any power which
permits us to increase the penalty on your appeal against the severity of
120