People smuggling is the only crime that attracts a mandatory sentence under Federal laws. A recent High Court decision has upheld the right of the Federal government to set minimum sentences. Section 233A(1) of the Migration Act 1958 (Cth) creates the offence of people smuggling with no mandatory minimum sentence; while section 233C(1) carries a mandatory minimum term of imprisonment of five years, with a minimum non-parole period of three years. A person who smuggled a group of five or more unlawful non-citizens could be charged with either offence.
The High Court was asked to determine 'whether the provisions creating the offences, or the provision fixing a mandatory minimum term of imprisonment for the aggravated offence, was beyond legislative power'. In a majority decision of six to one, the Court held that the provision was not beyond the legislative power of the Commonwealth Parliament and did not confer judicial power on prosecuting authorities.
On 6 September 2010, a boat carrying 52 passengers and four crew members was intercepted near Ashmore reef. Mr Magaming was one of the crew members. The passengers on the boat were not Australian citizens and none had a lawful right to enter Australia. Mr Magaming was charged with facilitating the bringing or coming to Australia of a group of at least five unlawful non-citizens contrary to s 233C(1) of the Migration Act 1958 (Cth).
Mr Magaming pleaded guilty in the District Court of NSW and was sentenced to the mandatory minimum term of five years’ imprisonment with a non-parole period of three years. He sought leave to appeal to the Court of Criminal appeal alleging that the provisions prescribing the mandatory minimum term of imprisonment was invalid. He was granted leave to appeal, but the court dismissed his appeal concluding that the provision was valid. Mr Magaming appealed to the High Court.
Mr Magaming contended that the prosecuting powers could choose between charging an offence that carried a mandatory minimum sentence and charging another offence that carried no mandatory sentence, and that the prosecuting authorities incorrectly exercised judicial power. He also contended that prescribing a mandatory minimum sentence was incompatible with the institutional integrity of the courts and that it required a court to impose a sentence that was arbitrary.
The High Court dismissed this appeal. The High Court held that although prosecuting authorities had a choice as to which offence to charge, that choice did not involve an exercise of judicial power or confer on prosecuting authorities an ability to determine the punishment to be imposed for the same conduct, even where one available offence prescribed a mandatory minimum sentence. The Court also held that the imposition of a mandatory minimum sentence was not inconsistent with the institutional integrity of the courts and did not involve the imposition of an arbitrary sentence. Source: High Court media release, 11 October 2013.
See 'High Court upholds people smuggling mandatory sentence' by Oliver Milman, The Guardian Australia, 11 October 2013.
Karim v R; Magaming v R; and others  NSWCCA 23, 15 February 2013
We have added this case to the LIAC Crime Library - Magaming v The Queen