The High Court on Mandatory Sentencing in Magaming v The Queen: Only Part of the Story

By Anna Dziedzic and Sophie Walker

Magaming v The Queen Case Page

There is only one set of offences under federal law that attracts a mandatory sentence, and perhaps unsurprisingly these offences all relate to people smuggling. Upon conviction of a crime of aggravated people smuggling under the Migration Act 1958 (Cth), the sentencing judge must impose a jail term of at least five years. In Magaming v The Queen [2013] HCA 40, six of the seven judges of the High Court upheld the validity of this mandatory sentencing provision under the Australian Constitution. But this is only part of the story. After all, the principal character is Bonang Darius Magaming, a 19 year old Indonesian fisherman who was recruited to steer the boat which carried 52 asylum seekers to Australia. On 6 September 2010, his boat was detained by the Australian Navy near Ashmore Reef. Mr Magaming pleaded guilty to the aggravated offence of smuggling at least five people into Australia. At sentencing, the judge described Mr Magaming as ‘a simple Indonesian fisherman’ and explained that but for the mandatory sentencing provision, he would have imposed a lighter sentence. The judge said:

The seriousness of [Mr Magaming’s] part in the offence therefore falls right at the bottom end of the scale. … In the ordinary course of events, normal sentencing principles would not require a sentence to be imposed as heavy as the mandatory penalties that have been imposed by Federal Parliament. However, I am constrained by the legislation to impose that sentence.

Neither the pleadings, nor the judgment, nor media reports manage to fill in many of the gaps in Mr Magaming’s story. Why did he decide to join the crew? How was his mental and physical health? How did the imposition of a mandatory sentence which the judge considered well beyond the severity of the sentence that would have otherwise been imposed affect him?

The story is also about the consequences and desirability of the practice of mandatory sentencing. This is a global story, and high profile cases across a range of countries have qualified the operation of mandatory sentencing laws, principally through the human right to be free from cruel and unusual punishment which is taken to require that the sentence imposed be proportionate to the offender’s conduct.

For a case that could have had huge consequences for mandatory sentencing regimes across the nation, the case offers barely any insight either of these stories.

The story told by the High Court
Before the High Court, Mr Magaming argued that the mandatory sentencing provision in the Migration Act as contrary to ch III of the Constitution. Chapter III enshrines the separation of judicial power from the legislative and executive functions of government. It has two elements, both invoked in Mr Magaming’s case. First, judicial power may only be exercised by courts; and secondly, courts may only exercise judicial power and cannot perform legislative or executive functions.

The first question: Do the mandatory sentencing provisions confer judicial power on the prosecutor?
Mr Magaming argued that the prosecutor had a choice about whether to charge for the ‘simple’ offence of organising or facilitating the entry of a non-citizen with no lawful right to come to Australia (s 233A of the Migration Act) or the ‘aggravated’ offence of organising or facilitating the entry of at least five such people to Australia (s 233C). The mandatory sentence applied only to the aggravated offence, leaving courts with sentencing discretion for the simple offence. It was argued that the prosecutor’s choice about which offence to charge in effect became the prosecutor’s choice about the punishment that would be imposed upon conviction, a question that is properly a matter for the court alone.

The majority held that the decision to charge a simple or aggravated offence was a legitimate choice for the prosecutor to make, regardless of whether one of those offences attracted a mandatory sentence. While the prosecutor can choose what charge to bring, the punishment to be imposed is determined by the court according to law, including a law that stipulates a mandatory sentence. The prosecutor’s choice was not an exercise of judicial power.

Justice Gageler came to a different view on the nature of the choice facing the prosecutor. His Honour emphasised that the provisions in this case differed from ordinary simple and aggravated offences in one important respect: that the aggravated offence carried a mandatory sentence. While a law may prescribe a mandatory sentence to be imposed on all persons convicted of a certain offence, a law may not transfer from the court to the executive the discretion to determine the severity of the punishment to be imposed upon an individual within a class of offenders. For Justice Gageler, the provisions of the Migration Act operated in practice to do just this: the prosecutor was given the power to choose which individuals from a single class — indeed, individual crew from the same boat — would be charged with the aggravated offence carrying a mandatory sentence and those who would not. As a result, the decision about punishment was removed from the courts and impermissibly placed in the hands of the executive.

The second question: Do the mandatory sentencing provisions confer a non-judicial power on the Court?
Mr Magaming’s second argument was that the mandatory sentencing provision deprived the sentencing court of the capacity to ensure that the punishment is proportionate to the crime. Where courts are prevented from taking into account the offender’s personal circumstances, conduct and other mitigating factors, the sentence may be disproportionate to the offence and the offender.

Arguments of this kind have been successful in mandatory sentencing cases overseas, but proved difficult to fit into the Australian constitutional framework. The attempt to embed this argument in ch III involved three steps. First, principles of fair and proportionate sentencing had to be ‘constitutionalised’, so that the exercise of judicial power under ch III required compliance with minimum standards of sentencing principles. The second step involved the recognition that while not all mandatory sentencing provisions were necessarily unconstitutional, all such provisions involved some invasion on the judicial power protected by ch III. Finally, in order to determine if a particular mandatory sentence provision infringed ch III, Mr Magaming proposed a constitutional proportionality analysis, familiar to human rights lawyers overseas and Australian constitutional lawyers. In this case, it was argued that the mandatory sentencing provision was not proportionate to the end sought by the Parliament, namely the general deterrence of people smuggling.

The majority was critical of this argument, which it saw as impermissibly mixing proportionality as a principle of criminal sentencing and proportionality as a principle of judicial review of laws limiting constitutional rights and freedoms. The judges expressed a number of concerns with this approach, including that there was no satisfactory reason to apply proportionality reasoning to ch III; the exclusion of purposes of punishment other than general deterrence from the analysis; and the uncertain means by which the court might determine whether a sentence was ‘too harsh’. Justice Keane in a separate opinion agreed with the majority, explaining that sentencing judges require sentencing ‘yardsticks.’ Setting these yardsticks is properly the province of Parliaments after considering broad issues of policy, including the seriousness of the activity to be made an offence. For His Honour, requiring a sentencing judge to assess whether this policy decision was appropriate would involve the court in a political decision and would itself compromise the institutional integrity of the judiciary.

The story overseas
Mandatory sentencing laws have been challenged in a number of overseas courts, including the United States Supreme Court and the European Court of Human Rights. In contrast to the High Court’s approach in Magaming, these courts have applied sentencing and constitutional proportionality arguments.

The US Supreme Court in Miller v Alabama, 567 US ___ (2012) held that the imposition of a mandatory life without parole sentence for children breached the Eighth Amendment’s prohibition of cruel and unusual punishment. Sentencing proportionality is a key feature of Eighth Amendment jurisprudence: the punishment should be ‘graduated and proportioned’ to the crime. Judge Kagan, writing for the majority, stated that a judge bound by mandatory sentences ‘misses too much’ when limited in their ability to consider mitigating factors when sentencing an offender. Similar considerations shaped the judgment of the European Court of Human Rights in Vinter v United Kingdom [2013] ECHR 645, in which three prisoners sentenced to whole-life imprisonment argued that their sentences breached art 3 of the European Convention on Human Rights, which prohibits inhuman or degrading punishment. In holding that UK law did infringe art 3, the Grand Chamber emphasised that mandatory sentences are more likely to be disproportionate to ‘all relevant circumstances of the offence and the criminal who has committed it’ than an individualised sentencing decision.

The US Supreme Court has also had little difficulty utilising constitutional proportionality arguments. At its core, the Eighth Amendment prevents the imposition of excessive punishment, that is, a punishment that is disproportionate to the offender and the offence. In these cases, the Court must ask whether the sentence imposed is harsher than necessary to achieve a legitimate goal, including retribution, incapacitation and deterrence. This standard is not static, and the extent to which the sentencing law is tailored to achieve these legitimate goals will be interpreted in light of society’s evolving standards of decency (see Furman v Georgia, 408 US 238, 382 (1972) (Burger CJ)).

By placing these three cases side by side, it is striking how out-of-step the High Court’s reasoning in Magaming is, particularly in terms of the Court’s refusal to engage with arguments concerning proportionality. There is of course, a simple explanation for this. The Australian Constitution lacks an express due process clause and a Bill of Rights. Mr Magaming tried, and ultimately failed, to fit an argument about sentencing proportionality derived from cruel and unusual punishment cases into ch III of the Constitution, which does not directly concern individual rights, but rather the institution of the judiciary and the separation of judicial power.

The untold story of Bonang Magaming
Reading into the story a bit further, Mr Magaming’s need to tailor a rights argument into one that focused on the institution of the court and the exercise of judicial power influenced the nature of the constitutional advocacy before the High Court. One reason for the success of the challenge to the US mandatory sentencing laws in Miller v Alabama was that advocates were able to bring the individual stories of the two petitioners to the Supreme Court and to the public, stories which were brought into sharp focus in the majority judgment. Judge Kagan considered the children’s alcohol and substance dependency and the history of the abuse they suffered, and concluded that ‘if ever a pathological background might have contributed to a 14-year-old’s commission of a crime, it is here’. Given their troubled upbringings, the mandatory sentence of life without parole was neither graduated nor proportionate and was thus declared unconstitutional.

In contrast, we are told very little about the circumstances of Bonang Magaming, who is barely mentioned by name in majority’s judgment. On one hand, this approach can be seen as an example of the Court’s impartiality; a reflection of the principle that everyone is equal before the law. On the other hand, by obscuring the lives and stories of the individuals who bring constitutional challenges, the Court is withdrawing not only from Mr Magaming’s story, but also from a role in promoting public dialogue about a larger story still — that of the intensely political issue of asylum seekers who arrive in Australia by boat.

AGLC3 Citation: Anna Dziedzic and Sophie Walker, ‘The High Court on Mandatory Sentencing in Magaming v The Queen: Only Part of the Story’ on Opinions on High (13 November 2013) <>.

Sophie Walker is a Research Fellow at the Centre for Media and Communications Law at Melbourne Law School. She researches comparative media law, with a focus on defamation and privacy. Sophie has worked for Reprieve UK’s death penalty team, primarily assisting European nationals facing execution in the United States, and for Equal Justice Initiative of Alabama. She holds an LLM from New York University School of Law and a BA in Jurisprudence from Oxford University.

6 thoughts on “The High Court on Mandatory Sentencing in Magaming v The Queen: Only Part of the Story

  1. The piece practically accuses the High Court of deliberately concealing or disregarding all sorts of contextual information, whereas I see no evidence that this was the case. The Court simply decided the case in point on its merits, none of which was the circumstances of the appellant.

    Also, some of the analogies are stretched, and far indeed.Whilst your simple explanation for the difference in Australian and American mandatory sentencing rules is also quite a comprehensive explanation, your analogy to Miller is almost incomprehensible. The American Supreme Court has held up mandatory sentences on numerous occasions, and one cannot readily imagine that they would have even granted leave to hear the case at hand, and indeed that they might have summarily reversed had the relevant lower court found the other way.

    Moreover, mandatory life sentences for child offenders are simply not in any reasonable world an analogue for mandatory five year sentences for border offences!

    Which also applies to the European example, albeit the comparison there misfires completely primarily because the constitutional framework is so vastly different.

  2. Thanks for your comment.

    We would like to make it clear that we don’t think that the High Court deliberately concealed or disregarded contextual information. Rather, we found it interesting that the personal circumstances of the offender, while crucial in the US mandatory sentencing decisions, was of limited relevance in this case, such that the appellant himself did not seek rely on it. As you point out, the US, UK and Australian constitutional frameworks are vastly different, and we try to explain how the very different basis for constitutional review of mandatory sentencing provisions in Australia (based on the separation of judicial power) affected the type of advocacy before the court.

    And while we agree that the mandatory sentences at issue in the overseas cases we cite were more severe, so were the crimes of which those offenders were convicted. We chose the comparisons to show how overseas courts considered the question of sentencing proportionality – that the sentence should be proportionate to the crime – as part of the constitutional question, whereas the High Court did not (again, due to our different constitutional framework).

    • Thank you for the reply. Your response is all fair enough, but perhaps the piece itself needs a line along the lines of “this is not about the actual decision, but about the broader context of the relevant Australian law.”

      As for the comparative part, maybe this is that rarest of things, legal writing that errs on the side of brevity. Unfortunately I think it errs too far, because the examples taken are in fact so far that they verge on being non sequiturs, at least in the context they are in.

      But please don’t take this as a disencentive to keep posting!


  3. In his comment, Patrick said:

    “The American Supreme Court has held up mandatory sentences on numerous occasions, and one cannot readily imagine that they would have even granted leave to hear the case at hand, and indeed that they might have summarily reversed had the relevant lower court found the other way.”

    Interestingly, just last week, the Ontario Court of Appeal struck down mandatory minimums of three and five years for firearms offences as incompatible with the Canadian Charter’s prohibition on cruel and unusual punishment: and

    Not the Americans, of course, but mandatory minimum sentences are a common part of the Canadian system too and the Supreme Court of Canada has also ‘held up mandatory sentences on numerous occassions’, applying just the sort of proportionality analysis the Magaming court labeled as contrary to the judicial role. Maybe the Canadian Supreme Court will disagree with the Ontario one, but I doubt it will do so summarily.

    • Thanks – timely and apposite indeed!!

      A snowflakes chance in hell of that catching on in the US though, at least outside of the 9 th circuit, which the SC summarily reverses a few times a year 🙂

  4. This is a refreshing post for the way it highlights the broader debate surrounding mandatory sentencing on people smuggling, and it puts the issue nicely into comparative perspective.
    Another comparison closer to home that could also be drawn is with Indonesia. As Antje Missbach and I highlight in a policy paper on people smuggling offences in Indonesia, judges have responded in a different way to the minimum five year penalty. Indonesian judges have defied the legislature and sought to retain judicial discretion in sentencing practises for people smuggling cases, at times handing down a prison sentence less than the five year minimum. While this creates legal uncertainty and does not help the rule of law, it has meant that an accused has a greater chance of the circumstances of their case being taken into consideration at the sentencing stage of a trial.

    The policy paper is available here:

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