: Aggravated People Smuggling

Aggravated People Smuggling

Anthea Vogl

In October 2013, the HCA dismissed the appeal in the case of Magaming v The Queen [2013] HCA 40, holding that the discretion to charge alleged people smugglers with an aggravated offence, which carries a mandatory minimum sentence, is not an unconstitutional exercise of judicial power by criminal prosecutors.

The appellant, Bonang Darius Magaming, pleaded guilty to the aggravated offence of people smuggling in the District Court of New South Wales and was sentenced to five years’ mandatory imprisonment with a mandatory non-parole period of three years. Describing the appellant as a ‘simple Indonesian fisherman’, the sentencing judge made clear that the objective seriousness of Mr Magaming’s crime would have resulted in a lesser sentence but for the mandatory minimum. Following an unsuccessful appeal in the NSW Court of Criminal Appeal, the High Court granted leave to appeal.

Mr Magaming was one of four individuals crewing a boat carrying 52 asylum-seekers to Australia in September 2010. The boat was intercepted near Ashmore Reef and Mr Magaming was charged with aggravated people smuggling under the Migration Act 1958 (s 233C). The defendant argued that the mandatory minimum sentence of five years (with a maximum of twenty years) for the aggravated charge permitted an unconstitutional exercise of judicial power by prosecuting authorities, since a person smuggling a group of five or more persons could be charged with one of two ‘co-extensive’ offences. In a majority decision (6:1), the court rejected the argument that the offences were co-extensive. The majority held that the prescription of a mandatory sentence for the aggravated charge did not render the prosecutor’s choice between an ‘aggravated’ or ‘simple’ charge an exercise of judicial power.

The majority also rejected the argument that mandatory minimum sentences were incompatible with the institutional integrity of the courts, holding that mandatory sentences are acceptable legislative prescriptions for the punishment of certain crimes and that the appellant had failed to make out why the minimum sentence was not proportionate to the offence and conduct in question.

In dissent, Gageler J accepted the argument that since the Commonwealth DPP is in effect able to determine the severity of punishment where five or more persons are smuggled, such a discretion is an exercise of judicial power and constitutionally invalid.

While in August 2012 the former Labor Attorney-General directed the Commonwealth DPP not to charge offenders with the aggravated offence, except in certain and exceptional circumstances, the Liberal government has announced an intention to revive the use of the aggravated charge. In October, Attorney-General George Brandis stated that, ‘The government is serious about stopping people smuggling and ensuring those convicted face the full force of Australian law.’

ANTHEA VOGL is a PhD candidate at UTS and the University of British Columbia Faculty of Law.

(2013) 38(4) AltLJ 276
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