Magaming v The Queen

Case [2013] HCA 40

HIGH COURT OF AUSTRALIA

FRENCH CJ,
HAYNE, CRENNAN, KIEFEL, BELL, GAGELER AND KEANE JJ

BONANG DARIUS MAGAMING  APPELLANT

AND

THE QUEEN  RESPONDENT

Magaming v The Queen

[2013] HCA 40

11 October 2013

S114/2013

ORDER

Appeal dismissed.

On appeal from the Supreme Court of New South Wales

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)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

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.

FRENCH CJ, HAYNE, CRENNAN, KIEFEL AND BELL 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…

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AGLC
Magaming v The Queen [2013] HCA 40
Case
[2013] HCA 40
Decision Date

CaseChat Overview and Summary

The case of *Magaming v The Queen* concerned an appeal to the High Court of Australia by Mr Magaming, who had been convicted of the aggravated offence of smuggling a group of at least five non-citizens into Australia, contrary to section 233C of the *Migration Act 1958* (Cth). The appellant was a crew member on a boat carrying 52 passengers who had no lawful right to enter Australia. He pleaded guilty and was sentenced to the mandatory minimum term of five years' imprisonment, with a non-parole period of three years, as prescribed by section 236B of the Act. The appellant argued that this mandatory minimum sentencing provision was invalid.

The central legal issues before the High Court were whether sections 233A and 233C of the *Migration Act* were coextensive, whether the prescription of a mandatory minimum sentence under section 236B conferred judicial power on prosecuting authorities, and whether section 236B was incompatible with the institutional integrity of the courts or required the imposition of an arbitrary and non-judicial sentence. The appellant contended that the mandatory minimum sentence was too harsh and that the provisions infringed upon the separation of judicial and prosecutorial functions and the integrity of the courts.

The High Court rejected the appellant's arguments, finding no basis for applying proportionality reasoning to invalidate the impugned provisions. The Court held that the appellant had not demonstrated that the mandatory minimum sentence was "harsh" by reference to any identifiable standard outside the statutory provisions. The Court concluded that the appellant's assertion that the sentence was too harsh, without more, did not entail the invalidity of the relevant sections of the Act.

Consequently, the High Court dismissed the appeal, upholding the validity of sections 233A, 233C, and 236B of the *Migration Act*.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

These reasons will demonstrate that none of the provisions was shown to be invalid.The facts and proceedings 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. 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. 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. 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. 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. [4]Karim v The Queen (2013) 274 FLR 388. 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 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".

Evidence

Evidence Before The Court

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Decision

Reasons for decision

FRENCH CJ, HAYNE, CRENNAN, KIEFEL AND BELL JJ GAGELER J KEANE J
The basic proposition which the appellant advanced was that the prescription of a mandatory minimum penalty for the offence created by s 233C of the Act contravened Ch III of the Constitution. No satisfactory reason was provided for applying proportionality reasoning of the kind described in Monis in determining whether Ch III was contravened. At what point of the analysis of that proposition proportionality reasoning would properly be deployed, or how it would be deployed, was not explained. All that was said, in effect, was that the sentence which had to be, and was, imposed on the appellant was too "harsh". But the standard of comparison implicitly invoked was not identified. The comparison sought to be made was not amplified beyond, or supported by more than, generalised assertions of what was "necessary" to work sufficient general deterrence of the proscribed conduct. How, or whether, this Court could decide what generally prescribed level of penalty is "necessary" or "not necessary" to deter certain conduct need not be considered in this appeal. It is enough to say that the appellant demonstrated no basis for applying proportionality reasoning or for forming the factual conclusions on which this aspect of his argument depended. If, as the appellant submitted, the sentence which the Act required the sentencing judge to impose on him was too "harsh" when measured against some standard found outside the relevantly applicable statutory provisions, that conclusion does not entail invalidity of any of the impugned provisions.Conclusion and orders For these reasons, the appellant's challenges to the validity of ss 233A, 233C and 236B of the Act should be rejected. The appeal should be dismissed. Introduction Mr Magaming, an Indonesian fisherman then aged 19, was recruited by organisers of a people smuggling activity to steer a boat which brought a group of 52 unlawful non-citizens to Australia. The Commonwealth Director of Public Prosecutions ("the CDPP") might have charged him with one or more counts of the offence of people smuggling created by s 233A of the Migration Act 1958 (Cth) ("the Act"). The CDPP instead charged him with the aggravated offence of people smuggling created by s 233C of the Act. The elements of the offence of people smuggling created by s 233A of the Act and the elements of the aggravated offence of people smuggling created by s 233C of the Act are identical save for the number of non-citizens whose bringing or coming to Australia, or whose entry or proposed entry into Australia, the offender must be proved to a court intentionally to have organised or facilitated, being reckless as to those non-citizens having no lawful right to come to Australia: one in the case of the offence of people smuggling; and a group of at least five in the case of the aggravated offence of people smuggling. The offence of people smuggling carries a maximum penalty of 10 years' imprisonment. The aggravated offence of people smuggling carries a maximum penalty of 20 years' imprisonment. The aggravated offence also attracts the application of s 236B(3)(c) and (4)(b) of the Act, which make mandatory the imposition on conviction of a penalty of imprisonment of at least five years with a non-parole period of at least three years.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ, HAYNE, CRENNAN, KIEFEL AND BELL JJ, GAGELER J, KEANE J

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