Arbeit macht frei: - Fredrick Töben

HIS HONOUR: I can’t see how, on the way that the matter was
conducted, the point is available to you. The point in Grigor-Scott v Jones
was that he was never a respondent to the proceeding in the Human
Rights and Equal Opportunity Commission. That was never put to her
Honour or to me.
MR PERKINS: Your Honour, I was putting this morning that the way in
which, in fact, this pleading commenced had been that it was against Dr
Töben representing the Adelaide Institute
HIS HONOUR: Mr Perkins, this morning you put a suggestion how the
title should be amended; you didn’t put that point. You didn’t put it, and
you’ve never put it, and nobody has ever put it to her Honour; nobody
ever put it to the Full Court. It’s a very late invention. Have you got any
other points you’d want to say in relation to the grounds of appeal you
might have?
MR PERKINS: Those were the ones that I would put, your Honour.
HIS HONOUR: Right. And on penalty, what would you say about
penalty; how have I gone wrong there?
MR PERKINS: Accepting that your Honour treated the matter as
deserving a sentence of imprisonment and I think I have to say that
paragraph 67 through to 71 show that your Honour has reached a view
that this is a case of the most serious category of cases, and with the least
suggestion of circumstances that your Honour would find extenuating, but
nonetheless, your Honour, when your Honour considered as your
Honour referred to in paragraph 84 that you conclude that a sentence of
imprisonment is required, your Honour considered the question of a
suspension in paragraph 86. Your Honour, there are what I submit is that
there is one significant way of dealing with Dr Töben which recognises
everything that your Honour has said, and it is that the sentence of
imprisonment and the warrant that brings it about be served by way of
what is known as home detention.
HIS HONOUR: Very well. Did you put that to me at the penalty
hearing?
MR PERKINS: Your Honour, I didn’t put that specifically. Alternatives
HIS HONOUR: Secondly, what power does this court have to order
home detention? It’s not a criminal court. This is a sentence of the court
in relation to contempt, not exercising a criminal jurisdiction; what power
does the court have to make such an order?
MR PERKINS: In my contention, it is open to the court to make
HIS HONOUR: But why?
MR PERKINS: such an order
HIS HONOUR: But say why.
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