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High Court judgments

Every Issue

Cite as: December 2013 87 (12) LIJ, p.64

Constitutional law

Judicial power – mandatory minimum sentences for marginally differing offences – whether exercise of judicial power dictated by decision of executive

In Magaming v The Queen [2013] HCA 40 (11 October 2013) s233A(1) of the Migration Act 1958 (Cth) created the offence of people smuggling. This was committed when a person facilitated the travel of an unlawful non-citizen to Australia, and carried no minimum penalty. Under s233C(1) the offence of aggravated people smuggling was created. It was committed when the travel of five or more persons was facilitated and carried a minimum penalty of five years’ imprisonment. M was an Indonesian fisherman, and one of four crew on a fishing boat carrying 52 asylum seekers to Australia. He pleaded guilty to the charge of aggravated people smuggling. He was sentenced as required to five years’ imprisonment with a minimum term of three years. His appeal to the Court of Criminal Appeal (NSW) was dismissed. This Court concluded the provisions were not unconstitutional. His further appeal to the High Court was dismissed by majority: French CJ, Hayne, Crennan, Kiefel and Bell JJ jointly; sim Keane J; contra Gageler J. The majority rejected the contention that the presence of a minimum term provision meant the outcome was dictated by the offence the prosecution selected, thereby making the provisions incompatible with the exercise of judicial power. Appeal dismissed.

Criminal law

Prosecution appeals

In Munda v Western Australia [2013] HCA 38 (2 October 2013) M was an Aboriginal who lived in an Aboriginal community in Western Australia. M’s domestic partner died after he assaulted her following the consumption of cannabis and alcohol. M pleaded guilty to manslaughter. The primary judge sentenced him to five years and three months imprisonment with a non-parole period of three years and 11 months. The Crown appealed. The Court of Appeal (WA) allowed the appeal and resentenced M to a term of seven years and nine months with the same non-parole period. M appealed to the High Court. He claimed the Court of Appeal erred in finding there were grounds for appellate court intervention and failing to appreciate the significance of M’s disadvantage as an Aboriginal. M’s appeal was dismissed: French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ: contra Bell J. The majority concluded the Court of Appeal (WA) had not erred in the way it approached the questions of manifest inadequacy, antecedents and personal circumstances, and the residual discretion given by s41(4) of the Criminal Appeals Act 2004 (WA). Appeal dismissed.

Criminal law

Sentence – crown appeal – appeal against sentence – need for appellate court to first determine sentence imposed is inadequate – sentencing persons with deprived social backgrounds

In Bugmy v The Queen [2013] HCA 37 (2 October 2013) B was an Aboriginal prisoner in NSW who had a deprived background. On becoming dissatisfied with arrangements for a prison visit, B assaulted a prison officer causing the loss of use of one eye. B pleaded guilty to charges of assaulting the prison officer and causing grievous bodily harm. The primary judge sentenced B to a non-parole term of four years and three months with a balance of term of two years and a recommendation that B be released on an alcohol management program at the end of the non-parole period. The DPP (NSW) appealed contending the sentence was manifestly inadequate and later asserted the sentence gave too much weight to B’s circumstances. The Court of Appeal (NSW) allowed the appeal on the assault charge finding the primary judge had given too much weight to B’s subjective circumstances and not enough to the seriousness of the offending. It resentenced B to a non-parole term of five years with a balance of two years and six months. B’s appeal to the High Court was allowed: French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ jointly; sim Gageler J. The High Court concluded the Court of Appeal erred in failing to first determine the sentence on the assault charge was manifestly inadequate. Having allowed the appeal, the High Court reviewed decisions such as Fernando (1992) 76 A Crim R 58, and Kennedy v The Queen [2010] NSWCCA 260 and reflected how the facts of an offender’s deprived background and the effects of alcohol were to be approached over time and at various times when the offender was sentenced. Appeal allowed.

Criminal law

Confiscation of assets (NSW) – examination in aid of confiscation order – whether accused can be compelled to answer questions in examination while prosecution pending

In Lee v NSW Crime Commission [2013] HCA 39 (9 October 2013) s31D(1)(a) of the Criminal Assets Recovery Act 1990 (NSW) authorised the NSWCC to apply to the NSW Supreme Court for orders that a person be examined in aid of orders for confiscation of assets acquired by criminal activity. Sections 13 and 13A abrogated the obligations of confidentiality, legal professional privilege and the privilege against self-incrimination in an examination. The NSWCC applied for an order under s31D(1)(a) for the examination of L while various charges against him involving drug trafficking and firearms remained pending. The application was refused by the primary judge (relying on Hammond v The Commonwealth [1982] HCA 42). The application was granted on appeal by a NSW Court of Appeal of five members. L’s further appeal to the High Court was dismissed by majority: French CJ, Crennan, Gageler and Keane JJ; contra: Hayne, Kiefel, Bell JJ. The majority distinguished the decision in X7 v Australian Crime Commission [2013] HCA 29 (concerning examinations under the Australian Crime Commission Act (Cth)) and concluded the NSW Act authorised the abrogation of the privilege against self-incrimination. Observations by members of the need for the High Court not to depart lightly from its earlier decisions. Appeal dismissed.

THOMAS HURLEY is a Victorian barrister, ph 9225 7034, email The full version of these judgments can be found at


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