Magaming v The Queen  HCA 40 (11 October 2013)
The High Court has dismissed an appeal regarding a mandatory minimum sentence imposed under the Migration Act 1958 (Cth), highlighting a gap in human rights protection under Australian law.
Bonang Darius Magaming, a 19 year old Indonesian fisherman, was recruited by organisers of a people smuggling activity to steer a boat which brought a group of 52 unlawful non-citizens to Australia. The boat was intercepted near Ashmore Reef.
The Commonwealth Director of Public Prosecutions (CDPP) charged Mr Magaming with the offence of “aggravated people smuggling” created by section 233C of the Migration Act 1958 (Cth). This offence mirrors the simple offence of “people smuggling” set out in section 233A of the Act, but involves bringing five or more non-citizens into Australia (as opposed to bringing one non-citizen into Australia, which is all that is required by the simple offence).
The aggravated offence carries a mandatory minimum sentence of five years’ imprisonment with a non-parole period of three years. There is no mandatory minimum for the simple offence.
Mr Magaming pled guilty and was sentenced to the mandatory minimum term of imprisonment. The sentencing judge made it clear that Mr Magaming’s part in the offence was right at the bottom end of the scale of seriousness and that he would have imposed a much lesser sentence if the relevant provisions preserved any discretion.
In August 2012, following Mr Magaming’s conviction, the Commonwealth Attorney-General issued a direction to the CDPP stating that it should not charge people with the aggravated offence unless satisfied that the accused had committed a repeat offence, the accused’s role in the people smuggling venture extended beyond that of crew member, or a death had occurred in relation to the venture. The direction, however, did not apply to previous convictions or appeals from previous convictions. The direction, therefore, did not apply to Mr Magaming’s case.
Mr Magaming appealed to the New South Wales Court of Criminal Appeal, alleging that the Act was invalid insofar as it required the imposition of a mandatory sentence. The appellant’s application for leave was heard with four other applications challenging similar convictions, but the appeals were dismissed.
Mr Magaming was given leave to appeal to the High Court. The Attorneys-General of the Commonwealth, New South Wales, South Australia, Queensland and Western Australia intervened in support of the Commonwealth. The Australian Human Rights Commission was given leave to make written submissions as amicus curiae.
Counsel for Mr Magaming argued that as the offences created by sections 233A and 233C of the Act were identical save for the number of unlawful non-citizens concerned, where the number of unlawful non-citizens was five or more, the offences were coextensive. On this basis, counsel for Mr Magaming argued that the relevant provisions were incompatible with the separation of judicial and prosecutorial functions and with the institutional integrity of the courts. It was also argued that the provisions required a court to impose sentences that were “arbitrary and non-judicial”.
The High Court dismissed the appeal 6:1.
The majority (French CJ, Hayne, Crennan, Kiefel and Bell JJ) rejected the appellant’s contention that the offences were coextensive. The majority pointed out that the aggravated offence under section 233C required proof of an additional element; namely, that a group of five or more unlawful non-citizens were brought to Australia.
The majority also rejected the appellant’s arguments that the availability or exercise of a choice between charging an accused with the aggravated offence rather than one or more counts of the simple offence was incompatible with the separation of judicial and prosecutorial functions and incompatible with the institutional integrity of the courts. The majority reasoned that prosecutorial choice between the two charges is not an exercise of judicial power. In this respect, it was no different from the choice which a prosecutor must often make between proceeding summarily against an accused and presenting an indictment.
The majority also rejected the appellant’s contention that the mandatory minimum sentencing scheme was arbitrary and non-judicial, declining to take a proportionality approach to the question as urged by the appellant.
Justice Gageler, dissenting, would have allowed the appeal. His Honour said that the class of persons who commit the aggravated offence also necessarily commit at least one count of the simple offence. Therefore, the effect of the discretion necessarily exercised by the CDPP in deciding to prosecute a person with the aggravated offence instead of the simple offence, was to empower the CDPP to determine the minimum penalty to be imposed on the conviction. In Justice Gageler’s view, this was a usurpation of judicial power.
Justice Gageler said that the Attorney-General’s direction issued in August 2012 only served to illustrate this point. At  his Honour said:
Whether or not the CDPP's satisfaction might be susceptible of judicial review, the decision-making processes able to be adopted by the CDPP do not attract the constitutionally entrenched requirements of fairness and transparency applicable to decision-making by a court. The satisfaction of the CDPP need not be based on admissible evidence available to be placed before a court. Once satisfied of a specified circumstance, the CDPP need not prove that circumstance in the ensuing prosecution, either to obtain a conviction or to obtain the mandatory minimum penalty on conviction.
The majority’s decision reveals a gap in human rights protection under Australian law. Mandatory sentences for people smuggling offences contravene the prohibition on arbitrary detention and the right to a fair trial contained in the International Covenant on Civil and Political Rights. They are also contrary to human rights principles that require fair punishment and a punishment that is proportionate to the crime. These mandatory sentencing laws have resulted in cooks, deckhands and fishermen, such as Mr Magaming, being sentenced to five years’ jail.
The Attorney-General’s direction that limits the circumstances under which the aggravated offence should be pursued does go some way towards closing this gap in the law. However, as Justice Gageler pointed out in his reasons, the circumstances listed in the direction are only policy. They do not form elements of the aggravated offence and do not have to be proved in open court.
Further, it is possible to foresee circumstances where the conditions in the direction are met, but the facts of the case do not warrant the mandatory sentence of five years’ imprisonment. For example, while the aggravated offence can be pursued where a death has occurred, there may be extenuating facts such as the age, the mental state or the motives of the offender that mean the mandatory sentence is not reasonable or proportionate. As the present case demonstrates, the problem with mandatory sentencing is that it limits a judge’s ability to exercise discretion based on the individual facts of the case.
This decision is available online at: http://www.austlii.edu.au/au/cases/cth/HCA/2013/40.html
Sarah Robertson, Solicitor, King & Wood Mallesons Human Rights Law Group