Magaming v The Queen [2013] HCA 40

Magaming v The Queen [2013] HCA 40 - HCA 2013 case summary — Zoe

[18]

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.
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.

[20]

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.
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.
But in no relevant sense can it be said that simple and aggravated forms of offence are "coextensive". The most that can be said is that the two offences (one simple, the other aggravated) have some (often many) common elements; at least one further element must be proved to establish the more serious offence. In many cases of that kind, it would be possible to describe the simple offence as a "lesser included offence": "lesser" in the sense of less serious, and "included" inasmuch as proof of the aggravated offence would necessarily establish the elements of the simple offence**[9]**. But the particular form of description that may be applied does not matter for present purposes. What does matter is that the offences have different elements and are distinct.
The offences created by ss 233A and 233C overlapped but they were not coextensive. Proof of an offence under s 233C required proof of an element different from, and additional to, the elements of the offence under s 233A. Proof of an offence under s 233C required proof that a group of five or more unlawful non-citizens was to be brought to Australia. Proof of an offence under s 233A required only proof that one unlawful non-citizen was to be brought to Australia.
Contrary to the appellant's submission**[10], the text and structure of s 233A and the Act as a whole do not permit[11]** reading the relevant element of the offence created by s 233A as if it referred to one or more unlawful non-citizens. It may be accepted that proving that an accused had organised or facilitated the bringing or coming to Australia of several unlawful non-citizens would be sufficient to prove commission of an offence under s 233A. (It is not necessary to examine whether a charge framed in that way would be duplicitous or otherwise embarrassing.) But the proof in that case would go beyond what was necessary to establish contravention of s 233A. All that it was necessary to prove in order to establish the offence created by s 233A was that one unlawful non-citizen was the subject of the forbidden conduct. That was the relevant element of the offence created by s 233A.
Before turning to consider the different ways in which the appellant alleged that ss 233A, 233C and 236B (or some of them) were invalid, it is desirable to say something about the decision to lay a charge where prosecuting authorities reasonably consider that the facts which it is expected will be proved at trial would establish the commission of more than one offence.

[21]

It is well established**[12]** that it is for the prosecuting authorities, not the courts, to decide who is to be prosecuted and for what offences.
Since February 1986, the Office of the Commonwealth Director of Public Prosecutions has published the guidelines that will be followed in making decisions relating to the prosecution of Commonwealth offences. Those guidelines, set out in the "Prosecution Policy of the Commonwealth", have been amended from time to time but it is not necessary to describe those changes. In accordance with long-established prosecutorial practice throughout Australia, the guidelines have provided for many years that "[i]n the ordinary course the charge or charges laid or proceeded with will be the most serious disclosed by the evidence". The guidelines set out considerations that may bear upon the decision not to follow that "ordinary course", but it is not necessary to describe those considerations.
Nearly twelve months after the appellant had pleaded guilty to, and been sentenced to the mandatory minimum term of imprisonment for, an offence against s 233C, the Attorney-General of the Commonwealth directed the Director of Public Prosecutions, in effect, to depart from the policy of charging the most serious offence disclosed by the evidence in respect of people smuggling offences. On 27 August 2012, the Attorney, acting under s 8(1) of the Director of Public Prosecutions Act 1983 (Cth), directed that the Director "not institute, carry on or continue to carry on a prosecution for an offence" under s 233C of the Act unless satisfied that the accused had committed a repeat offence, the accused's role in the people smuggling venture extended beyond that of a crew member, or a death had occurred in relation to the venture. The direction was expressed not to apply to proceedings, including appeals, in relation to an offence for which a person had been sentenced before the date of the direction. The direction, therefore, did not apply to the proceedings against the appellant.

[26]

The appellant did not go so far as to submit that the availability, or the exercise, of prosecutorial discretion about what charge would be laid against an accused, without more, entailed the conclusion that the provisions creating the relevant offences were beyond power as conferring judicial power on the prosecutor. That is, the appellant did not submit that the bare fact that a prosecutor had a choice between charges meant that the impugned provisions of the Act were, or any of them was, invalid on that account alone. Rather, the appellant's argument depended upon giving determinative significance to the legislative provision for a mandatory minimum penalty for one offence but not the other.
The appellant founded his argument on the dissenting reasons of Jordan CJ in Ex parte Coorey[15]. To explain that opinion, it is necessary to say something about the legislation considered in it: the Black Marketing Act 1942 (Cth) and regulations made under the National Security Act 1939 (Cth) ("the National Security Regulations"). Jordan CJ concluded**[16]** that, subject to a few exceptional cases, the Black Marketing Act did not create new offences. Rather, his Honour considered**[17]** that the Black Marketing Act "takes a large number of acts which are already offences because breaches of National Security Regulations or Orders made thereunder, [and] stigmatizes them as black marketing".
The Black Marketing Act provided**[18]** that a person was not to be prosecuted for the offence of black marketing without the consent of the Attorney-General given after the Attorney had received a report from the Minister administering the relevant regulations and advice from a committee of three departmental representatives appointed by the Attorney.
The offence of black marketing was punishable by a minimum sentence of three months' imprisonment if prosecuted summarily and a minimum sentence of twelve months' imprisonment if prosecuted on indictment. Contraventions of the National Security Regulations could be punished under the National Security Act by fine or imprisonment or both.
To the extent to which an offence created by the Black Marketing Act was identical with an offence created independently of that Act, Jordan CJ concluded**[19]** that the Black Marketing Act purported "to invest a person who is not a competent Court with part of the judicial power of the Commonwealth, in that it purports to enable him at his discretion to dictate the penalty in particular cases" (emphasis added). The Black Marketing Act was said**[20]** to have this effect because "[i]t leaves the existing penalties [scil for breach of the National Security Regulations] generally operative, but it purports to authorise [the Attorney-General], in particular cases chosen by him, to dictate to a Court of Justice that at least a certain penalty shall be imposed in the event of conviction, no such minimum being generally operative".
By contrast, Davidson J**[21]** and Nicholas CJ in Eq**[22]** held that the impugned provisions did not confer judicial power on the Attorney or the committee advising the Attorney and were therefore valid. As Davidson J said**[23]**, "the Legislature of the Commonwealth ... vested in the Attorney-General a power which is not judicial, and although it has the effect of limiting in some degree the discretion of the Court in imposing penalties, that limitation only operates in the future upon a contingency of a conviction by the Court".
A few months after the decision in Ex parte Coorey, the reasons of, and conclusion reached by, Jordan CJ in that case were advanced in this Court, in Fraser Henleins Pty Ltd v Cody[24], in support of an attack on the validity of the Black Marketing Act similar, if not identical, to that mounted in Ex parte Coorey. All five Justices rejected**[25]** the reasoning of, and conclusion reached by, Jordan CJ in Ex parte Coorey.
As in Ex parte Coorey, the premise on which this Court considered the validity of the relevant provisions of the Black Marketing Act in Fraser Henleins was that there were two identical offences carrying different penalties. Neither in Fraser Henleins nor in Ex parte Coorey was any consideration given to the validity of that premise, and its validity need not now be examined. For the purposes of this appeal, it is necessary to make only two points about the two decisions.
First, the essential premise for the opinion expressed by Jordan CJ in Ex parte Coorey (that the offences carrying different penalties were identical) was not established in this case. As has already been explained, the offences created by ss 233A and 233C of the Act were not identical and were not, as the appellant submitted, "coextensive" in their operation. The elements of the two offences were different.
Second, and more importantly, there is no reason to doubt the correctness of Fraser Henleins. The appellant's submission that Fraser Henleins was wrongly decided and should be reopened must be rejected.
It is to be noted that Fraser Henleins was later considered and applied by this Court in Palling v Corfield[26] and that no doubt was then cast upon what was said in the earlier decision. Nothing said or decided in Palling, or in subsequent cases, casts doubt upon the general proposition that it is for the prosecuting authorities (not the courts) to decide who will be prosecuted and for what offences. The decisions which a prosecutor makes about what offences to charge may well affect what punishment will be imposed if the accused is convicted. But that observation does not entail, as the appellant's argument necessarily assumed, that the prosecutor exercises judicial power in choosing to charge an aggravated form of offence rather than the simple form of that offence.
If, as in this case, one available charge is of an offence for which a mandatory minimum penalty is provided and there is another available charge of a different offence for which no minimum penalty is prescribed, the prescription of a mandatory minimum penalty for one of the offences does not lead to any different conclusion. Prosecutorial choice between the two charges is not an exercise of judicial power. In this respect, it is no different from the choice which a prosecutor must often make between proceeding summarily against an accused and presenting an indictment (which commonly will expose the accused to a penalty heavier than could be imposed in summary proceedings). Prosecutorial choice between proceeding summarily and proceeding on indictment is not an exercise of judicial power**[27]**.
Whether other considerations would arise if a prosecutor were to be given some power to invoke the application of a different and higher penalty by some means other than the laying of a distinct and separate charge**[28]** need not be examined. It is enough to conclude that the availability or exercise of a choice between charging an accused with the aggravated offence created by s 233C, rather than one or more counts of the simple offence created by s 233A, is neither incompatible with the separation of judicial and prosecutorial functions nor incompatible with the institutional integrity of the courts. Legislative prescription of a mandatory minimum penalty for the offence under s 233C neither permits nor requires any different answer. (It is, therefore, neither necessary nor profitable to consider whether, in the circumstances of this case, the appellant could have been charged with 52 counts of people smuggling contrary to s 233A.)
The limitation of prosecutorial discretion worked by the Attorney's subsequent direction about charging people smuggling offences is not to the point. As it happens, the direction ameliorated the position of persons facing charges of people smuggling. But if, instead of ameliorating the position, the Attorney's direction had required the charging of the most serious offence disclosed by the evidence, it would have done no more than reflect long-established prosecutorial practice. In either case, if the direction was validly given (and the contrary was not suggested), neither giving the direction, nor implementing it by charging offenders in the manner required, would constitute any exercise of judicial power. Neither giving the direction, nor implementing it, would be incompatible with the separation of judicial and prosecutorial functions or incompatible with the institutional integrity of the courts.

[27]

The appellant's argument that the mandatory minimum penalty prescribed by s 236B for offences against s 233C was "arbitrary and non-judicial" was developed in three steps. It was said, first, that there was "no legislative conclusion as to the irreducible seriousness of an offence against ss 233A and 233C", and second, that there were "insufficient statutory criteria of general application to take the decision whether to invoke the minimum penalty provision outside the description of arbitrary or capricious". It followed, so the argument continued, that there was "no fixed relationship between the seriousness of an offence against ss 233A and 233C and the sentence imposed, causing sentences to be unpredictable and therefore arbitrary and incompatible with Ch III" of the Constitution.
Two closely related propositions underpinned all of these aspects of the appellant's argument. First, the offences created by ss 233A and 233C were treated as identical for all relevant purposes. As has already been demonstrated, that is not right. The offences had different elements. And it is not right to say that there was "no legislative conclusion as to the irreducible seriousness" of the offence created by s 233C. The prescription of a mandatory minimum penalty for the offence created by that section was the Parliament's conclusion about what was the least penalty that should be imposed on any offender for a breach of that section.
Second, each aspect of this part of the appellant's argument assumed that, because proof of the aggravated offence created by s 233C would necessarily prove the simple offence under s 233A, no different questions about punishment could or should arise according to whether the aggravated offence had been charged and proved or only the simple offence. And because the simple offence carried no mandatory minimum penalty, the argument sought to characterise imposition of the mandatory minimum penalty on a person convicted of the aggravated offence as "arbitrary" or "non-judicial".
Shorn of the disapproving epithets, the appellant's submission amounted to the proposition that the Parliament cannot, consistent with Ch III of the Constitution, prescribe a mandatory minimum penalty for an aggravated offence if no mandatory minimum penalty is prescribed for the simple offence. How or why that should be so was not explained.
The larger proposition which the appellant advanced was that the legislative prescription of a mandatory minimum penalty for an offence under s 233C distorted "the judicial sentencing function" and that the distortion was "not reasonably proportionate to the end of general deterrence" which the law sought to serve. The proposition came very close to, perhaps even entailed, the still larger proposition that legislative prescription of a mandatory minimum penalty is necessarily inconsistent with Ch III.
As the appellant rightly submitted, adjudging and punishing criminal guilt is an exclusively judicial function. In very many cases, sentencing an offender will require the exercise of a discretion about what form of punishment is to be imposed and how heavy a penalty should be imposed. But that discretion is not unbounded. Its exercise is always hedged about by both statutory requirements**[29]** and applicable judge-made principles. Sentencing an offender must always be undertaken according to law.
In Markarian v The Queen, the plurality observed**[30]** that "[l]egislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks." The prescription of a mandatory minimum penalty may now be uncommon**[31]** but, if prescribed, a mandatory minimum penalty fixes one end of the relevant yardstick.
The appellant may be right to have submitted, as he did, that, even at 1901, mandatory minimum custodial sentences were "rare and exceptional". But as the appellant's submission implicitly recognised, mandatory sentences (including, at 1901, sentence of death and, since, sentence of life imprisonment) were then, and are now, known forms of legislative prescription of penalty for crime. Legislative prescription of a mandatory minimum term of imprisonment for an offence was not, and is not, on that account alone inconsistent with Ch III.
Presumably with this proposition in mind, the appellant sought to attack the validity of prescribing the particular minimum sentence fixed in respect of an offence under s 233C by submitting that, if the penalty was fixed as a general deterrent, it was "for an offender at the bottom end of the scale ... manifestly disproportionate to the offence committed" (emphasis added).
This appeal to proportionality impermissibly mixed two radically different ideas. The appellant sought, by reference to statements made in Monis v The Queen[32] about how the relationship between a law and a constitutionally guaranteed freedom which is not absolute may be tested, to allege that the prescription of the particular mandatory minimum penalty was not proportionate to the end it sought to serve. The appellant identified that end as general deterrence, thereby excluding from consideration any other purpose of punishment. How or why that exclusionary step should be taken was not explained. And the appellant also sought, by his reference to "an offender at the bottom end of the scale", to engage the accepted sentencing principle which requires a judge exercising a discretion about sentence to impose a sentence which is proportionate. The sentence imposed must be proportionate in the sense that it properly reflects the personal circumstances of the particular offender and the particular conduct in which the offender engaged when those circumstances and that conduct are compared with other offenders and offending.
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.

[29]

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.
Mr Magaming pleaded guilty to the aggravated offence of people smuggling with which he was charged. He was sentenced to the mandatory minimum of five years' imprisonment with a three-year non-parole period. The sentencing judge made clear that the objective seriousness of Mr Magaming's conduct would have led to a lesser sentence absent the mandatory minimum.
Counsel for Mr Magaming advance on his behalf the proposition that a purported conferral by the Commonwealth Parliament on an officer of the Commonwealth executive of a discretion to prosecute an individual within a class of offenders for an offence which carries a mandatory minimum penalty, instead of another offence which carries only a discretionary penalty, amounts in substance to a purported legislative conferral of discretion to determine the severity of punishment consequent on a finding of criminal guilt and is for that reason invalid by operation of Ch III of the Constitution. They acknowledge that the unanimous war-time decision of the High Court in Fraser Henleins Pty Ltd v Cody[33] stands against that proposition. They ask that Fraser Henleins be reopened and overruled. I would reopen and overrule Fraser Henleins and accept the constitutional proposition they advance.
Counsel for Mr Magaming then argue that s 236B(3)(c) and (4)(b) of the Act impart that constitutionally invalidating character to the CDPP's discretion to prosecute the aggravated offence of people smuggling created by s 233C, to which s 236B(3)(c) and (4)(b) attach, instead of prosecuting one or more counts of the offence of people smuggling created by s 233A. The prosecutorial discretion of the CDPP is an aspect of the general power of the CDPP to prosecute offences against laws of the Commonwealth conferred by s 9 of the Director of Public Prosecutions Act 1983 (Cth) ("the CDPP Act"). I would accept their argument and hold s 236B(3)(c) and (4)(b) of the Act to be invalid.

[34]

Why that should be so is founded on deeply rooted notions of the relationship of the individual to the state going to the character of the national polity created and sustained by the Constitution. The separation of the judicial power of the Commonwealth by Ch III of the Constitution ensures that no individual can be deprived of life or liberty at the instance of an officer of the Commonwealth executive as punishment for an asserted breach by the individual of a Commonwealth criminal prohibition, except as a result of adjudication by a court of the controversy between the executive and the individual as to whether that breach has occurred and if so whether that deprivation of life or liberty is to occur. Whether guilt is to be found, and if so what, if any, punishment is to be imposed, are questions which arise sequentially in the resolution of that single justiciable controversy.
That structural necessity for adjudication by a court has the effect of applying to the determination of the underlying controversy between the executive and the individual "the Constitution's only general guarantee of due process"[37]. Due process is constitutionally guaranteed at least to the extent that the court must always be independent of the executive and impartial**[38], that the procedure adopted by the court at the initiative of the executive must always be fair to the individual[39], and that the processes of the court must (at least ordinarily) be open to the public[40]**.
"The unique and essential function of the judicial power is the quelling of ... controversies [including those between the executive and the individual as to life or liberty] by ascertainment of the facts, by application of the law and by exercise, where appropriate, of judicial discretion."[41] The exercise of the judicial power "involves the application of the relevant law to facts as found in proceedings conducted in accordance with the judicial process", which "requires that the parties be given an opportunity to present their evidence and [at least ordinarily] to challenge the evidence led against them"[42].
Those standard non-exhaustive descriptions of the nature of judicial power and the incidents of its exercise apply to the determination of criminal punishment no less than to the determination of criminal guilt. The facts relevant to each are limited to those facts permitted by law to be taken into account by a court. Subject to the requirement of s 80 of the Constitution that a trial on indictment must be by jury, the function of ascertaining those facts is exclusively judicial. That means, amongst other things, that in the ascertainment of the facts relevant to criminal punishment, no less than in the ascertainment of the facts relevant to criminal guilt, the parties must be given an opportunity to present, and at least ordinarily to challenge, evidence of facts in dispute**[43]**.
Chapter III of the Constitution therefore reflects and protects a relationship between the individual and the state which treats the deprivation of the individual's life or liberty, consequent on a determination of criminal guilt, as capable of occurring only as a result of adjudication by a court. That adjudication quells a controversy, to which the individual and the state are parties, as to the legal consequences of the operation of the law on the past conduct of the individual. The adjudication quells that controversy by the application of the relevant law and, where appropriate, of judicial discretion to facts ascertained in accordance with the degree of fairness and transparency that is required by adherence to judicial process.
That understanding of the nature and incidents of the determination and punishment of criminal guilt underlies the reasons which have generally been given in Australia for treating executive decisions made in the prosecutorial process as ordinarily insusceptible of judicial review, an insusceptibility recently described as having "a constitutional dimension"[44]. Thus, "[i]t has generally been considered to be undesirable that the court, whose ultimate function it is to determine the accused's guilt or innocence, should become too closely involved in the question whether a prosecution should be commenced"[45]. The same general perception of undesirability of close curial involvement in prosecutorial processes has applied to a question about whether a particular charge is to be laid, as well as to a question about whether a particular charge, having been laid, is to be proceeded with**[46]. The main reason generally given is that the court's review of such an exercise of prosecutorial discretion would compromise the impartiality of the judicial process by involving a court in an inquiry into a forensic choice made by a participant in a controversy actually or potentially before the court[47]. A complementary reason often given is that a court's control over its own hearing and determination of whatever charge might in fact be laid and proceeded with in the exercise of prosecutorial discretion means that "the court has other powers to ensure that a person charged with a crime is fairly dealt with"[48]**.
There is, as the Solicitor-General of the Commonwealth properly points out, nothing unusual about prosecutorial discretion, as to the choice of charge or as to the mode of trial, affecting the maximum penalty which a court might impose on an individual as a result of a determination of criminal guilt. He also properly points out that there is nothing unusual about criminal laws enacted by a single legislature laying down a "base level" offence, the elements of which are then wholly subsumed within the elements of another, "aggravated" offence in the sense that conduct constituting the aggravated offence is conduct which also constitutes the base level offence.
But the problem encountered in the present case simply does not arise where, as is usual, the penalty for the aggravated offence remains within the discretion of the court. The punishment to be imposed as a result of a determination of criminal guilt remains in such a case for the determination of the court. The imposition of that punishment still involves in such a case only the application of the applicable law, and judicial discretion, only to facts ascertained by the court in accordance with the judicial process.
With the exception of the legislation upheld in Fraser Henleins, the Solicitor-General of the Commonwealth points to no Commonwealth legislation in which an aggravated offence, wholly subsuming a base level offence, has carried a mandatory minimum penalty. Consideration of the legislation in issue in that case highlights the potential for undermining the separation of the judicial power of the Commonwealth which unqualified acceptance of such a legislative model would entail.

[35]

The legislation in issue in Fraser Henleins was the Black Marketing Act 1942 (Cth), the duration of which was limited to the then current war. The Black Marketing Act defined "black marketing" to mean, amongst other things, conduct proscribed by regulations made under the National Security Act 1939 (Cth). Contravention of those regulations was already a criminal offence under the National Security Act carrying a maximum but not a minimum penalty. The Black Marketing Act provided: that any person who engaged in conduct which constituted black marketing as so defined was guilty of the offence of black marketing; that the offence of black marketing was able to be prosecuted summarily or on indictment; that the punishment for black marketing was to carry maximum and minimum penalties; and that the offence of black marketing was not to be prosecuted without the written consent of the Attorney-General after both a report from the Minister administering the regulations, and advice from a Committee appointed by the Attorney-General consisting of a representative from each of three specified Commonwealth Departments.
Fraser Henleins was constituted as an application in the original jurisdiction of the High Court to review and quash convictions for offences of black marketing which had resulted from prosecutions on indictment. The grounds of the application included invalidity of the power conferred on the Attorney-General to consent to the prosecution of an offence under the Black Marketing Act carrying the mandatory minimum penalty, in light of the identical offence under the National Security Act carrying only a maximum penalty.
The validity of that power of the Attorney-General had some months earlier been upheld by majority in the Full Court of the Supreme Court of New South Wales in Ex parte Coorey[49]. The practical operation of the conferral of that power had there been described by Davidson J, with whom Nicholas CJ in Eq formed the majority. Davidson J said**[50]**:

[48]

The argument now made on behalf of Mr Magaming that Fraser Henleins should be reopened is compelling. The Solicitor-General of the Commonwealth makes no submission that Fraser Henleins has been relied on in the framing of subsequent Commonwealth legislation. Although unanimous, Fraser Henleins did not rest on a principle worked out in a prior succession of cases**[67]**. With one exception, it has received at most passing reference in subsequent decisions of the High Court.
The exception is Palling v Corfield[68]. There the reasoning of Latham CJ in Fraser Henleins was relied on in upholding a provision of the National Service Act 1951-1968 (Cth), which applied on conviction of an offence of failing to attend a medical examination upon being served with a notice under that Act. The provision enabled the prosecution to request that the court ask the offender to enter into a recognisance to attend and submit to a medical examination upon being served with any subsequent notice. The provision went on to require the court, if the offender refused, to sentence the offender to imprisonment in respect of the offence for a period of seven days whether or not any fine was imposed in respect of the offence. The offender was to be released from that imprisonment immediately if he chose to submit to an examination. Palling v Corfield did not involve a reconsideration of Fraser Henleins and itself stands for no wider principle than that "[i]f the satisfaction of a condition enlivening the court's statutory duty depends upon a decision made by a member of the Executive branch of government, it does not necessarily follow that the Parliament has thereby authorised the Executive to infringe impermissibly upon the judicial power"[69]. The decision made by a member of the executive branch of government in Palling v Corfield was of a peculiar nature. It enlivened a statutory duty on the part of a court, in effect, to present the offender with a choice. It did not enliven a statutory duty on the part of the court to impose a mandatory minimum sentence of imprisonment.
The reasoning in Fraser Henleins elevates form over substance. The reasoning is in that respect out of step with the modern purposive understanding of Ch III of the Constitution.
More significantly, the outcome in Fraser Henleins undermines the protections afforded by Ch III's separation of judicial power to such an extent that maintenance of Fraser Henleins as an authority, in my opinion, "is injurious to the public interest"[70]. To accept Fraser Henleins is to accept, in the language of Davidson J already quoted, that the Commonwealth Parliament can enact a law which operates in practice to empower an executive officer to determine that a minimum penalty is to be imposed in the event of conviction in a particular case, and to do so on the advice of a preliminary secret investigation and by reference to information never to be placed before a court. It is to accept that the Commonwealth Parliament can use such a legislative model formally to invoke but substantially to by-pass the structural requirement of Ch III that punishment of crime occur only as a result of adjudication by a court. It is to accept that the length of deprivation of liberty to be imposed as a punishment for criminal conduct can in practice be the result of an executive determination made on information which can remain hidden not only from the individual and the public but from the court whose formal duty it is to impose the minimum penalty in the event of conviction.
Reopening Fraser Henleins, I would overrule it and adopt the analysis in the dissenting judgment of Jordan CJ in Ex parte Coorey.

[57]

Because the ultimate question of usurpation of judicial power is one of substance, it is unnecessary to resolve a question debated in argument as to the construction of s 233A of the Act. That question is whether the singular in s 233A is to be read as including the plural, with the result that the smuggling of a group of five or more non-citizens could be charged as a single offence against s 233A.
For present purposes, it is sufficient to recognise that the elements of the aggravated offence of people smuggling created by s 233C wholly encompass the elements of the offence of people smuggling created by s 233A in that the only element of aggravation which s 233C adds to s 233A lies in the smuggling being of a group of five or more non-citizens. The class of persons who commit the aggravated offence created by s 233C is therefore a class of persons who also necessarily commit at least one count of the offence created by s 233A.
The constitutional vice of s 236B(3)(c) and (4)(b) of the Act lies in their effect on the character of the discretion necessarily exercised by the CDPP in deciding to prosecute a person within that class for the aggravated offence created by s 233C instead of one or more counts of the offence created by s 233A. That effect is to empower the CDPP in effect to determine the minimum penalty to be imposed on the conviction of any individual within the class. If the CDPP decides to prosecute the individual for the aggravated offence created by s 233C, the individual must on conviction receive at least the minimum term of imprisonment required by s 236B(3)(c) and the minimum non-parole period required by s 236B(4)(b). If the CDPP decides instead to prosecute the individual for one or more counts of the offence created by s 233A, the minimum term and minimum non-parole period have no application.
Counsel for Mr Magaming illustrate that constitutional vice by calling attention to the practical consequences of a written direction given to the CDPP by the Attorney-General on 27 August 2012 ("the Direction")[79], after Mr Magaming had been convicted and sentenced. The Direction is not suggested by anyone to be beyond the power of the Attorney-General, conferred by s 8(1) of the CDPP Act, to give or furnish written directions or guidelines to the CDPP. The Direction recognises the reality that any member of the crew of a vessel bringing five or more unlawful non-citizens to Australia could fall within the class of persons who might be prosecuted for and convicted of the offences created by both s 233C and s 233A by reason of the conduct of his or her shipboard activities as a crew member.
The Direction directs the CDPP not to prosecute the aggravated offence created by s 233C of the Act against a person who was a member of the crew on a vessel involved in the bringing or coming, or entry or proposed entry, of unlawful non-citizens to Australia unless the CDPP is "satisfied" of one or more specified circumstances. One such circumstance is that "the person's role in the people smuggling venture extended beyond that of a crew member". Another is that "a death occurred in relation to the people smuggling venture".
The Direction goes on to direct that where it prevents the CDPP prosecuting a person for the aggravated offence created by s 233C of the Act, the CDPP must consider prosecuting the person for the offence created by s 233A of the Act in accordance with the "Prosecution Policy of the Commonwealth" ("the Prosecution Policy"). The relevant effect of the Prosecution Policy is that "[i]n the ordinary course the charge or charges laid or proceeded with" by the CDPP "will be the most serious disclosed by the evidence"[80].
Where the admissible evidence available to be placed before a court is sufficient to establish that an individual has engaged in smuggling a group of five or more non-citizens, the CDPP's decision to prosecute the individual for the aggravated offence created by s 233C is therefore ordinarily to turn on the CDPP's satisfaction of the existence of one or more of the circumstances specified in the Direction. Absent satisfaction of the existence of one or more specified circumstances, the CDPP is instead ordinarily to prosecute the individual for the offence created by s 233A.
The circumstances specified in the Direction are not found in s 233C of the Act, or elsewhere in statute. Their consideration requires the CDPP to form and act on his own assessment about the seriousness of the offender's conduct. Whether or not the CDPP's satisfaction might be susceptible of judicial review, the decision-making processes able to be adopted by the CDPP do not attract the constitutionally entrenched requirements of fairness and transparency applicable to decision-making by a court. The satisfaction of the CDPP need not be based on admissible evidence available to be placed before a court. Once satisfied of a specified circumstance, the CDPP need not prove that circumstance in the ensuing prosecution, either to obtain a conviction or to obtain the mandatory minimum penalty on conviction.
The CDPP might, for example, decide to prosecute a crew member for the aggravated offence created by s 233C instead of the offence created by s 233A on being satisfied that his or her role in what the CDPP considered amounted to a "people smuggling venture" extended beyond that of a crew member. But conviction for the aggravated offence created by s 233C would result whether or not the CDPP proved to the court that the crew member had that extended role and imposition of the mandatory minimum penalty required by s 236B(3)(c) and (4)(b) would necessarily follow.

[59]

KEANE J. I agree with French CJ, Hayne, Crennan, Kiefel and Bell JJ that the appeal should be dismissed. I agree with the reasons given by their Honours; and I would add only the following brief observations in relation to one aspect of the appellant's argument that s 236B(3)(c) of the Act, in its application to a person convicted of an offence against s 233C of the Act, is beyond the competence of the Commonwealth Parliament.
The appellant submitted that the sentence enacted by s 236B(3)(c), in its application to a "minor" offender such as the appellant, is manifestly disproportionate to the circumstances of the offence committed by him and his personal moral culpability. On that footing, it was argued that the mandate in s 236B(3)(c) for the imposition of that sentence is inconsistent with the integrity of the judiciary required by Ch III of the Constitution.
My concern is with the appellant's reliance on decisions of this Court which discuss proportionality in sentencing as authority to support that aspect of his argument. In this regard, the appellant cited Veen v The Queen [No 2][81], Wong v The Queen[82], Muldrock v The Queen[83] and Markarian v The Queen[84].
The discussion of proportionality in sentencing in the decisions cited affords no support for the appellant's argument. The discussion of proportionality in sentencing in those cases proceeds by reference to legislated yardsticks. Each yardstick fixed by the legislature provides a necessary datum point from which the discussion of proportionality in sentencing may proceed. As was said in Markarian v The Queen[85] by Gleeson CJ, Gummow, Hayne and Callinan JJ: "Judges need sentencing yardsticks." The provision of those yardsticks is the province of the Parliament.
None of the decisions cited by the appellant offers any support for the notion that it is any part of the judicial function to ensure that the yardsticks legislated for various kinds of misconduct are "appropriately" calibrated to some assumed range of moral culpability in offenders. The work of the legislature in laying down norms of conduct and attaching sanctions to breaches of those norms is anterior to the function of the judiciary. As was said in the Supreme Court of Canada in R v McDonnell[86]:

[61]

The enactment of sentences by the legislature, whether as maxima or minima, involves the resolution of broad issues of policy by the exercise of legislative power. A sentence enacted by the legislature reflects policy-driven assessments of the desirability of the ends pursued by the legislation, and of the means by which those ends might be achieved. It is distinctly the province of the legislature to gauge the seriousness of what is seen as an undesirable activity affecting the peace, order and good government of the Commonwealth and the soundness of a view that condign punishment is called for to suppress that activity, and to determine whether a level of punishment should be enacted as a ceiling or a floor.
In laying down the norms of conduct which give effect to those assessments, the legislature may decide that an offence is so serious that consideration of the particular circumstances of the offence and the personal circumstances of the offender should not mitigate the minimum punishment thought to be appropriate to achieve the legislature's objectives, whatever they may be.
It is ironic that the appellant should invoke the separation of powers effected by Ch III of the Constitution[87] because, in truth, the institutional integrity of the judiciary would be compromised by accepting the argument that the validity of s 236B(3)(c) of the Act is conditional upon acceptance by a sentencing judge that the sentence enacted by the legislature is no more than is appropriate to that judge's opinion of the culpability of the person convicted of the offence.
In summary, to argue that s 236B(3)(c) was an unnecessarily harsh way to pursue the end of deterring those minded to engage in the activity proscribed by s 233C is to make a point about the political wisdom of the law. Whether there is merit in that point is a matter for political judgment; but it has nothing to do with whether, as a matter of constitutional law, s 236B(3)(c) is inconsistent with the institutional integrity of a court obliged to enforce that law.

At a glance

Court

Decision date

Before

Source

Judgment (141 paragraphs)

Magaming v The Queen [2013] HCA 40 (11 October 2013)

Parties

Cases Cited (33)