Arbeit macht frei: - Fredrick Töben

MR PERKINS: It is – I would respectfully say that it is incumbent on the
court to consider, it having imposed a sentence of imprisonment, what
other ways the sentence of imprisonment may be served and accepting
HIS HONOUR: But how, for example, Mr Perkins, would this court
supervise home detention?
MR PERKINS: Your Honour, that is something – the notion of home
detention
HIS HONOUR: Just answer the question, please.
MR PERKINS: It is referred to in Commonwealth legislation.
HIS HONOUR: It might be, but just answer the question, if you wouldn’t
mind. How would it do it?
MR PERKINS: The way it would be done would be that there would be a
form of electronic bracelet which would trigger an alarm
HIS HONOUR: Where does the court get electronic bracelets, and
where does it get the power to make someone wear an electronic bracelet,
and who does the recording of it?
MR PERKINS: Your Honour, the matter of imprisonment is a state
responsibility and the states provide prisons for the Commonwealth.
HIS HONOUR: I see. Isn’t there authority against your proposition that
this court can order home detention?
MR PERKINS: I am not aware of such authority if there is. No, I can’t
put it higher than that, but I
HIS HONOUR: Have you looked?
MR PERKINS: I have looked. I can’t really add to that, your Honour.
There is authority concerning the failure of a court to consider home
detention once it has decided that a sentence of imprisonment is, in itself
HIS HONOUR: We’re talking about a criminal court; there’s no doubt
about that. We’re talking about a criminal court. I’m talking about the
Federal Court which is not exercising a criminal jurisdiction.
MR PERKINS: In my contention, the sentence – the discretion for
sentence is one which amply permits and in appropriate circumstances
may demand that alternatives to serving a sentence inside a prison be
considered, and that is the way that I put it, your Honour.
HIS HONOUR: All right. And you’re asking then for the warrant to lie
for 10 days so that you can put submissions to me as to – or to lodge an
appeal or seek leave whichever is necessary?
MR PERKINS: Yes, your Honour.
HIS HONOUR: Can you tell me one last thing? Why is that Dr Töben
hasn’t sought either leave to appeal or appeal from my declaration since
the penalty hearing?
MR PERKINS: The reason – I’m sorry, your Honour said ‘since the
penalty hearing’?
129