Mandatory sentencing for people smuggling: issues of law and policy.

• Jurisdiction: Australia
• Author: Trotter, Andrew
• Date: 01 August 2012

[The mandatory minimum terms of imprisonment for people smuggling have attracted substantial judicial criticism in recent years. A series of legislative amendments has broadened their application; decisions of intermediate courts of appeal have increased their effect; and a Senate inquiry has recommended against their repeal. Difficult questions of law surround the constitutionality of the regime and its compatibility with Australia's obligations at international law. In addition, the effect of these developments on indictees and their families raises important questions of policy. Does the punishment match the culpability of offenders? If not, is it justified by the need for deterrence? If so, does the scheme achieve that objective? An analysis of the laws and their application reveals that the answers to all three are in the negative. This article contends that mandatory sentencing for people smuggling is unjust and unnecessary, if not invalid, and locates areas for change in all three arms of government.]

CONTENTS I Introduction II Desirability of the Scheme A Punishment and Culpability 1 Culpability: A Profile of the Offenders 2 Punishment: A Survey of Sentences Imposed (a) Sentences before the Mandatory Regime (b) Mandatory Minimum Sentences (c) Aggravating Factors and Sentences beyond the Mandatory Minimum B Deterrence 1 The Need for Deterrence (a) Danger to Passengers (b) Sovereignty and Asylum (c) Capacity and Priority 2 Evaluation of Deterrent Effect III Validity of the Scheme A Validity under International Law 1 Infringement of Civil Rights Guaranteed by International Law (a) Arbitrary Detention (b) Cruel, Inhuman or Degrading Treatment (c) Detention of Children (d) Right to a Fair Trial (e) Discrimination 2 Noncompliance with Obligations under the Refugees Convention B Constitutional Validity 1 The State of the Law 2 The Room for Argument 3 Developments since Palling IV Contributing Factors and Areas for Reform A The Parliament 1 Penalties for People Smuggling 2 Definition of People Smuggling 3 Proposed Repeal B The Courts 1 Approaches to Mandatory Minimums 2 Consequences 3 Arguments C The Prosecutor, the Commonwealth Director and the Attorney-General 1 Guidelines and Prosecutions (a) Public Interest (b) Public Cost (c) Rising Rate of Acquittals 2 Recent Developments V Conclusion I INTRODUCTION

In 1937, Gordon Picklum, who assisted nine Chinese non-citizens to be transported to Australia hidden on a boat in the night, was sentenced to two months' imprisonment. (1) Much has changed since then. (2) Since 1999, the approach to sentencing people smuggling offenders has been incrementally hardened: maximum penalties have been raised, mandatory minimum penalties introduced, and the scope of the offences broadened in various ways. Those convicted of people smuggling now face a mandatory minimum of five years' imprisonment with a three-year non-parole period, increased to eight years with five years' non-parole for aggravated or repeat offences. (3) The effect of these legislative amendments was confirmed by a 2011 decision of the Western Australian Court of Appeal ruling that the mandatory minimum penalty should be reserved for the least serious category of offenders, departing from the views of many first-instance judges. (4) The adoption of this position by the Queensland Court of Appeal in 2012 (5) consolidates this precedent and sets a new high-water mark for the sentences imposed on those who assist asylum seekers to travel to our shores.

There is considerable debate over the desirability, and the validity, of this mandatory sentencing scheme. (6) Especially in light of recent statements by the Judicial Conference of Australia ('JCA'), there are serious concerns about its compatibility with the separation of powers. It sits equally uncomfortably with Australia's obligations at international law towards refugees, and the prohibition on arbitrary detention. Aside from its compatibility with such legal frameworks, however, are questions about its consonance with principles of sentencing, the legitimacy of its aims, and its effectiveness in achieving them. Experience has shown that the main effect of the scheme is to jail uneducated Indonesian fishermen, who may have been pressured into committing a crime, the consequences of which they are often unaware, for a term of at least three years, with debilitating consequences for them and their families. Significantly, by the expiration of that term, most of those they bring to the country will have been recognised as legitimate refugees. Despite such arguments, a Senate committee has recommended against passing a Bill that would repeal the controversial provisions. (7) However, more recently there have been promising developments with the options for change suggested by the Expert Panel on Asylum Seekers including the restoration of sentencing discretion to the courts, (8) and the Attorney-General directing the Commonwealth Director of Public Prosecutions ('CDPP') not to proceed with prosecutions that would attract the mandatory minimum except in certain cases. (9)

The severe approach to sentencing people smugglers has been the cumulative product of the legislative amendments made by the Parliament, their interpretation by intermediate appellate courts, and, until recently, the exercise of discretion by the CDPP. Part II of this article questions whether the scheme is desirable and compatible with the principles and objectives of sentencing, by comparing the punishment to the crime and evaluating the need for deterrence and the effectiveness of the scheme in achieving it. Part III takes the inquiry a step further to consider the legal validity of the mandatory sentencing regime against constitutional and international law. Part IV then reviews the developments in the legislature, the judiciary and the CDPP that have given rise to the current situation, to identify areas where there is room for change.

II DESIRABILITY OF THE SCHEME

The overarching function of criminal law must necessarily be to reduce the net amount of crime in society. (10) To this end, sentencing must operate to provide punishment proportionate to the crime, general and special deterrence, means for rehabilitation and the protection of the community from offenders. (11) There is something of a consensus that people smuggling is rightly criminal; the behaviour of high-level organisers in people smuggling, generally motivated by profit, to contravene the law and the sovereignty of nations is worth preventing. (12) International law contains instruments to combat people smuggling as well as to promote relocation of refugees, and the two are not incompatible. (13) However, the imposition of statutory mandatory minimum sentences inhibits (at best) or distorts (at worst) the intricate process of weighing one factor against another that this requires. (14) As highlighted by the JCA:

the administration of justice, through the application of established sentencing principles, can be compromised by a mandatory minimum term ... there is the practical inevitability of arbitrary punishment as offenders with quite different levels of culpability receive the same penalty. (15) Several objectives of sentencing that are critical in relation to other offences are inapplicable to those convicted of people smuggling. Rehabilitation, for example, 'protects the community by reducing the risk of reoffending [and is] perhaps the most fundamental justification for incarceration'. (16) However, it has been repeatedly noted that the great majority of those uneducated Indonesian fishermen apprehended for people smuggling offences have little to no risk of reoffending or otherwise bringing significant harm to the Australian public. (17)

The first question must be whether the statutory scheme tends to produce, directly or indirectly, punishments that are prima facie unfair in that they exceed the objective culpability of offenders. (18) If it does, the inquiry that naturally arises is whether there is some other legitimate goal that justifies that outcome. General deterrence is often advanced as that legitimate goal, raising two further questions: whether the crimes in question are so socially disruptive that especial attention to general deterrence is justified; (19) and, if it is, whether the regime is effective in achieving that deterrence. (20)

A Punishment and Culpability

1 Culpability: A Profile of the Offenders

One of the greatest difficulties with the mandatory sentencing scheme is that it covers offenders with a broad range of criminality. (21) It is consistently premised in the need for punishment of high-level organisers: the Attorney-General, for example, in support of the 2010 amendments to strengthen the regime noted that '[p]eople smugglers are motivated by greed and work in sophisticated cross-border crime networks [and] have little regard for the safety and security of those being smuggled'. (22) Yet, the Attorney-General's department has recognised the equal applicability of mandatory sentences to ordinary crew, (23) who comprise the overwhelming majority of offenders before the courts. (24) The organisers typically do not board the boats, and are only prosecuted by extradition. (25) By contrast, those found on board are often young, impecunious, uneducated and illiterate fishermen or farmers who may have been subject to financial or other pressures to participate in the operation. (26) Their participation is also at varying degrees--as owners or captains of the vessel, (27) crew assisting with the voyage, (28) or simply cooks or deckhands. (29)

A review of sentencing remarks reveals that most people smuggling journeys take place on overcrowded fishing boats of around 10 to 15 metres long, carrying between 15 and 50 passengers. (30) They are generally not equipped with enough food and water for the four- to five-day journey, and passengers frequently help the crew by bailing...