Minimum sentences for “people smugglers” constitutionally valid

Magaming v The Queen [2013] HCA 40 

A majority of the High Court held that the provisions creating a mandatory minimum sentence of five years’ imprisonment for those convicted of an aggravated form of “people smuggling” were valid.

The appellant was a 19 year-old fisherman who was recruited to steer a boat towards Australian waters. His offending was said by the sentencing judge to be “right at the bottom of end of the scale” and otherwise not warranting a five year term.

The appellant claimed that the ability of the prosecutor to choose between laying charges for the simple offence of people smuggling (which carried no minimum term) and the aggravated offence (i.e. smuggling at least five people, and carrying the five-year term) meant invalidity as:

  1. it conferred judicial power to determine punishment on prosecuting authorities;
  2. it was incompatible with the institutional integrity of the courts; and/or
  3. it required the imposition of arbitrary and non-judicial sentences.

A majority dismissed the first two arguments on the grounds that it required the reopening of High Court authority of longstanding and, in any event, it has long been the case that prosecutorial authorities may make decisions which expose the accused to an increased penalty. That is the case with deciding on the mode of trial (whether summary or by indictment) as it is with deciding which charge to lay. The third argument was dismissed on the ground that there is no constitutional principle that requires a legislated mandatory minimum sentence to be proportionate to the goal of general deterrence.

Gageler J dissented, holding that a Commonwealth law which purports to confer on an executive officer what is in substance a power to determine the punishment to be imposed by a court in the event of conviction transgresses the separation of the judicial power in Chap III of the Constitution[1].


[1]  (at [88])

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