EVERYDAY LAW: Law on mandatory minimum sentences

In today’s article I consider an interesting challenge to the constitutionality of a legislative scheme that imposed a mandatory minimum sentence.
As indicated in previous articles, the issue of mandatory minimum sentences has engaged the attention of the courts in several Commonwealth jurisdictions. One such case is Magaming vs R (2013), a decision of the High Court of Australia.
Here the appellant and several other persons were convicted of the offence of aggravated people smuggling contrary to 233C(1) of the Migration Act 1958 which relates to the smuggling of five or more people. Under Section 236B of the act, an offence against section 233C carries a mandatory minimum penalty of five years in prison.
The appellant challenged the constitutionality of the mandatory minimums legislative scheme on the footing that it transgressed the separation of judicial and prosecutorial functions of the limits imposed by Chapter III of the constitution. The gist of the objection was that the scheme allowed prosecutors to determine whether or not a defendant would be subject to a mandatory minimum sentence, and secondly, that it unlawfully curtailed the sentencing powers of federal courts and precluded them from avoiding imposing liability in a manner that was arbitrary and capricious.
The High Court, by a majority of six to one, held that the availability of a prosecutorial choice did not threaten the separation of judicial and prosecutorial functions or the integrity of the courts. The majority also rejected the appellant’s view that the mandatory minimum scheme was arbitrary and non-judicial, and declined to take an approach based on the proportionality which has been one of the factors on which mandatory minimum sentences have been struck down in other jurisdictions.
In his dissenting judgment, Gageler J. argued that the legislative scheme encroached on the doctrine of separation of powers. He described the applicable principles at paragraphs 84 and 85 of his judgment which are set out below:
84. Delivering judgment in the Privy Council in an appeal from Jamaica in 1975, Lord Diplock saw it as useful to consider ‘how the power to determine the length and character of a sentence which imposes restrictions on the personal liberty of the offender is distributed’ in accordance with what he described as ‘the basis principle of separation of legislative, executive and judicial powers that is implicit in a constitution on the Westminster model’.
“In relation to the exercise of legislative power he explained: ‘Parliament may, if it thinks fit, prescribe a fixed punishment to be inflicted upon all offenders found guilty of the defined offence – as, for example, capital punishment for the crime of a murder. Or it may prescribe a range of punishments up to a maximum in severity, either with or, as is more common, without a minimum, leaving it to the court by which the individual is tried to determine what punishment falling within the range prescribed by Parliament is appropriate in the particular circumstances of his case.’
Lord Diplock explained: ‘What Parliament cannot do, consistently with the separation of powers, is to transfer from the judiciary to any executive body . . . a discretion to determine the severity of the punishment to be inflicted upon an individual member of a class of offenders.’
85. Lord Diplock went on to acknowledge that the principle so formulated accorded with that earlier articulated by O’Dalaigh CJ in the Supreme Court of Ireland when he said: ‘There is a clear distinction between the prescription of a fixed penalty and the selection of a penalty for a particular case.
The prescription of a fixed penalty is the statement of a general rule, which is one of the characteristics of legislation; this is wholly different from the selection of a penalty to be imposed in a particular case . . . . The legislature does not prescribe the penalty to be imposed in an individual citizen’s case; it states the general rule, and the application of that rule is for the courts . . . . [T]he selection of punishment is an integral part of the administration of justice and, as such cannot be committed to the hands of the Executive.’
He argued that the limitation on legislative power as articulated by Lord Diplock and O’Dalaigh CJ should also be recognised as a limitation on the legislative power of the Commonwealth Parliament arising from the separation of the judicial power of the  Commonwealth as set out in Chapter III of the Constitution.
The judge felt that there was an encroachment on judicial power, where an executive officer was permitted by a legislative scheme to opt to prosecute some offenders within a class of offenders for an offence which carries a mandatory minimum penalty, but to prosecute other offenders within the same class for another offence which does not carry a mandatory minimum penalty.
• Cecil McCarthy is a Queen’s Counsel.