Magaming v The Queen

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: French CJ,Hayne,Crennan,Kiefel,Bell,Gageler,Keane JJ,GAGELER J,KEANE J.
• Judgment Date: 11 October 2013
• Neutral Citation: [2013] HCA 40
• Docket Number: S114/2013
• Date: 11 October 2013

Bonang Darius Magaming

Appellant

and

The Queen

Respondent

[2013] HCA 40

French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ

S114/2013

HIGH COURT OF AUSTRALIA

Magaming v The Queen

Constitutional law — Judicial power of the Commonwealth — Constitution, Ch III — Appellant crew member of boat carrying passengers with no lawful right to come to Australia — Appellant convicted of aggravated offence of smuggling group of at least five non-citizens reckless as to whether they had lawful right to enter Australia under s 233C(1) of Migration Act 1958 (‘Act’) — Section 236B of Act prescribed mandatory minimum sentence for offence under s 233C(1) of five years' imprisonment with minimum non-parole period of three years — Whether ss 233A(1) and 233C(1) coextensive — Whether prescription of mandatory minimum sentence for offence under s 233C(1) conferred judicial power to determine punishment on prosecuting authorities — Whether s 236B incompatible with institutional integrity of courts — Whether s 236B required court to impose arbitrary and non-judicial sentence.

Words and phrases — ‘aggravated offence’, ‘institutional integrity’, ‘judicial power’, ‘mandatory minimum penalty’, ‘prosecutorial discretion’.

Constitution, Ch III.

Migration Act 1958 (Cth), ss 233A(1), 233C(1), 236B.

Representation

N J Williams SC with J B King and D W Robertson for the appellant (instructed by Legal Aid Commission of NSW)

P W Neil SC with P M McEniery for the respondent (instructed by Commonwealth Director of Public Prosecutions)

Interveners

J T Gleeson SC, Solicitor-General of the Commonwealth with C P O'Donnell and G A Hill for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)

M G Sexton SC, Solicitor-General for the State of New South Wales with J E Davidson for the Attorney-General for the State of New South Wales, intervening (instructed by Crown Solicitor (NSW))

M G Hinton QC, Solicitor-General for the State of South Australia with C Jacobi for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor (SA))

G R Donaldson SC, Solicitor-General for the State of Western Australia with T C Russell for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor (WA))

G J D del Villar for the Attorney-General of the State of Queensland, intervening (instructed by Crown Law Qld))

K L Eastman SC with H Younan for the Australian Human Rights Commission, as amicus curiae (instructed by Australian Human Rights Commission)

ORDER

Appeal dismissed.

French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ.

The issues

1 The Migration Act 1958 (Cth) (‘the Act’) created two offences prohibiting a person organising or facilitating the bringing or coming to Australia of persons who are not citizens and have no lawful right to come to Australia. (Non-citizens with no lawful right to come to Australia were referred to in argument as ‘unlawful non-citizens’ and it is convenient to adopt that usage.) One offence (called 1 ‘people smuggling’) was to organise or facilitate the bringing or coming to Australia of another person who was an unlawful non-citizen. The other (described 2 as an ‘[a]ggravated offence of people smuggling (at least 5 people)’) was to organise or facilitate the bringing or coming to Australia of a group of at least five persons, at least five of whom were unlawful non-citizens.

2 The first, simple, form of offence (created by s 233A(1)) carried no mandatory minimum sentence; the second, aggravated, offence (created by s 233C(1)) carried 3 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.

3 Were the provisions creating the offences, or was the provision fixing a mandatory minimum term of imprisonment for the aggravated offence, beyond legislative power? Did all or some of the provisions confer judicial power on prosecuting authorities by giving those authorities a choice of which offence to prosecute when the choice affected whether an offender must be sentenced to imprisonment?

4 These reasons will demonstrate that none of the provisions was shown to be invalid.

The facts and proceedings

The facts and proceedings

5 On 6 September 2010, HMAS Launceston intercepted a boat near Ashmore Reef. The boat was carrying 56 persons: four crew and 52 passengers. The appellant was one of the crew. The passengers were not Australian citizens and none had a lawful right to enter Australia.

6 The appellant pleaded guilty in the District Court of New South Wales to one count of facilitating the bringing or coming to Australia of a group of five or more unlawful non-citizens contrary to s 233C of the Act. He was sentenced to the mandatory minimum term of five years' imprisonment. A non-parole period of three years was fixed.

7 In sentencing the appellant, the Chief Judge of the District Court (Chief Judge Blanch) said that it was ‘perfectly clear that [the appellant] was a simple Indonesian fisherman who was recruited by the people organising the smuggling activity to help steer the boat towards Australian waters’. Chief Judge Blanch said that the seriousness of the appellant's part in the offence fell ‘right at the bottom end of the scale’ and that, in the ordinary course of events, ‘normal sentencing principles would not require a sentence to be imposed as heavy’ as the mandatory minimum sentence.

8 The appellant sought leave to appeal to the Court of Criminal Appeal, alleging that s 233C of the Act was invalid ‘insofar as it required’ the imposition of a mandatory minimum sentence of five years with a non-parole period of 3 years’. (Because it was s 236B which provided for the mandatory minimum sentence, the reference to s 233C may have been inapt. Nothing was said to turn on this and argument in this Court proceeded without close attention to which of ss 233A, 233C and 236B was said to be invalid.) The appellant's application to the Court of Criminal Appeal was heard together with applications for leave to appeal against sentences imposed on four other applicants convicted of the same or substantially similar offences. The appellant and two of the other applicants in the Court of Criminal Appeal had been sentenced to the mandatory minimum term fixed by s 236B.

9 The Court of Criminal Appeal (Bathurst CJ, Allsop P, McClellan CJ at CL, Hall and Bellew JJ) granted leave to appeal but dismissed 4 the appeals, holding that the relevant provisions were not invalid.

10 By special leave the appellant appealed to this Court. The Attorneys-General of the Commonwealth, New South Wales, South Australia, Queensland and Western Australia intervened in support of the respondent. The Australian Human Rights Commission was given leave to make written submissions as amicus curiae.

The appellant's arguments

11 In this Court, the appellant submitted that the elements of the offences created by ss 233A and 233C were ‘identical save for the number of unlawful non-citizens concerned’. Thus, so the argument continued, where the number of unlawful non-citizens concerned was five or more, ‘ss 233A and 233C are coextensive’. Upon this platform, the appellant sought to build three closely related arguments: first, that the relevant provisions were incompatible with the separation of judicial and prosecutorial functions; second, that those provisions were incompatible with the institutional integrity of the courts; and third, that the provisions required a court to impose sentences that are ‘arbitrary and non-judicial’.

12 In addition, the appellant sought to take the third proposition (about ‘arbitrary and non-judicial’ sentences) and enlarge it into a distinct and more general submission that the mandatory minimum penalty imposed in this case was ‘incompatible with accepted notions of judicial power’ because it distorted a judicial function affecting liberty in a manner ‘not reasonably proportionate to the end of general deterrence’ which the law sought to serve.

13 It is convenient to deal first with the proposition that, for relevant purposes, ‘ss 233A and 233C are coextensive’.

‘Coextensive’ offences?

14 There was, and could be, no dispute that the offences created by ss 233A and 233C had different elements. Section 233A required proof that the accused organised or facilitated the bringing or coming to Australia of another person; s 233C required proof that the accused organised or facilitated the bringing or coming to Australia of a group of at least five persons. Proof of the latter offence would constitute proof of the former, but that would be because proof of the latter offence would prove more than was required to prove the former.

15 In this respect, ss 233A and 233C followed a long-established and common pattern of legislating for criminal offences. There are now, and long have been, many statutory offences where one form of offence can be seen as an aggravated form of another. The various statutory forms of the offence of assault 5 are a familiar example of this pattern. Proof of the aggravated form of offence will usually constitute proof of the simple offence and, in that way, the two offences can be seen to overlap. Statutory provisions 6 permitting a jury to return a verdict of guilt to the lesser offence, though the only offence expressly charged is the aggravated offence, reinforce this view of the two offences as overlapping. Likewise, statutory provisions and common law principles about double jeopardy 7, as well as relevant common law principles of sentencing 8, depend upon recognising the extent to which offences overlap.

16 But in no relevant sense can it be said that simple and aggravated forms...