In April this year, Prime Minister Kevin Rudd told the world:

People smugglers are engaged in the world’s most evil trade and they should all rot in jail because they represent the absolute scum of the earth. We see this lowest form of human life at work in what we saw on the high seas yesterday.

Rudd was talking about the tragic events arising from an explosion on board a boat carrying a group of Afghani asylum seekers.

Last week Rudd’s “scum of the earth” appeared before Justice Dean Mildren in the Supreme Court of the Northern Territory.

The two men charged with bringing the boat into Australian waters are Mohamed Tahir and a man known only as Beny. Beny is one of twelve children and attended school in South Sulawesi till he was about seven-years-old and has mostly worked as a subsistence fisherman and labourer.

As Justice Mildren told the court on his Sentencing Remarks:

…Approximately 12-18 months ago, you left South Sulawesi to go to Java in order to find work. You obtained some employment but about a month before you became involved in this matter, you left Java to go to Lombok in order to find work there. You were approached in Lombok by an older man who offered you employment on this trip. You were to be paid five million rupiah (about $560) which to you is a very large sum of money. You were lured into the task by the money. You expected to be caught. You were told that you would be returned home after a short time.

Mohamed Tahir was one of seven children had a similar work history as Beny and was:

…born in a village called Muncar near Banyuwangi in East Java…You were approached by two older men at the wharves near your village and were offered five million rupiah to undertake this job. You had not been in work for some months and to you this was a very substantial sum of money. You left your village with the men and you were taken to Lombok. There the vessel was loaded with the passengers.

Beny and Mohamed were both severely injured in the explosion.

As Justice Mildren told them in Court:

Beny … received burns to your left leg, left arm, left foot and the left side of your back. You were also thrown into the water for about 25-30 minutes before you were rescued. You were hospitalised for about 20-30 days.

Tahir, also received burns to your right arm and left leg. You have permanent significant scarring. You are still wearing bandages and will need to wear the bandages for the next two years. You still have pain.

Beny and Mohamed entered guilty pleas to section 232A of the Migration Act 1958 for which the maximum penalty is imprisonment for 20 years or a fine of $220,000 or both.

The true evil for Beny, Mohamed and for Justice Dean Mildren, is the requirement that anyone found guilty under section 232A is liable to a mandatory minimum sentence of five years with a mandatory minimum non-parole period of at least three years contained in section 233C of the Migration Act.

These provisions were introduced in 1999.

Introducing the Bill to the House of Representatives, Peter Slipper said that:

The bill … introduces a more severe penalty of 20 years imprisonment or 2000 penalty units, or both, for the trafficking of groups of five or more people. This penalty recognises that organised crime groups are involved in people trafficking, and the penalty reflects the seriousness of the offence.

Labor’s Con Sciacca responded:

Overall in 1997-98 some 157 illegal immigrants arrived by sea on our shores. In 1998-99 this figure increased eightfold to 859, and more are coming every day. This increase in people smuggling, in the operation of the so-called “snakeheads”, signifies that Australia’s penalties for these offences do not go far enough to deter those who assist these criminal warlords on our shores.

But in Beny and Mahamed’s case all in Justice Mildren’s Court knew that they were not members of one of Slipper’s “organised crime groups”, nor were they Sciacca’s “snakeheads” or Rudd’s “scum of the earth” deserving of the condign punishment required by the Migration Act provisions.

Beny and Mohamed were prime candidates for the exercise of ordinary judicial discretion and the application of the usual judicial Sentencing Principles that provide clarity and transparency in sentencing.

But in Beny and Mohamed’s case Justice Mildren’s hands were tied.

In words that reveal his barely restrained judicial frustration, he told Beny and Mohamed that:

But for the mandatory minimum sentences which I am required to impose, I would have imposed a much lesser sentence than I am now required by law to do. There are dangers when the Courts are required to impose mandatory minimum sentences. In cases such as this, the ordinary sentencing principles play no function.

The other dangers of mandatory minimum sentencing, apart from the fact that the Court is required to impose a sentence which is greater than the justice of the case would otherwise require include the fact that principles of parity between offenders has little or no role to play. All offenders that fall within the class will be treated equally no matter what their level of criminality may be.

However this is not the occasion to debate the merits of mandatory minimum sentencing.

Beny and Mohamed were both sentenced to five years “on the top” and a non-parole period of three years. Justice Mildren recommended that Beny and Mohamed be released after twelve months.

Maybe now is the time to debate the merits of mandatory minimum sentencing?