Anna Dziedzic and Sophie Walker, ‘The High Court on Mandatory Sentencing in Magaming v The Queen: Only Part of the Story’ (13 November 2013).
The High Court has dismissed an appeal against the decision of the NSW Court of Criminal Appeal relating to mandatory minimum sentences for people smuggling offences.

The appellant and several other people were convicted of aggravated people smuggling, contrary to s 233C(1) of the Migration Act 1958 (Cth), which relates to the smuggling of five or more people. Under s 236B of the Migration Act, an offence against s 233C carries a mandatory minimum penalty of at least 5 years in prison. The appellant challenged the constitutionality of the mandatory minimums scheme, arguing that it transgresses the separation of judicial and prosecutorial functions and the limits imposed by Ch III of the Constitution. Specifically, the appellant contended that the scheme allows prosecutors to determine whether or not a defendant will be subject to a mandatory minimum sentence, and secondly that it impermissibly curtails the sentencing powers of federal courts, and precludes the court from avoiding imposing liability in a manner that is arbitrary or capricious (which the mandatory minimums are argued to be).

The Court dismissed the appeal 6:1, Justice Gageler dissenting. The majority (French CJ, Hayne, Crennen, Kiefel and Bell JJ) held that the availability of a prosecutorial choice did not threaten the separation of judicial and prosecutorial functions or the institutional integrity of the courts. The majority also rejected the appellant’s contention that the mandatory minimums scheme was arbitrary and non-judicial, and declined to take a proportionality approach to the question as urged by the appellant.