Anti-People Smuggling and Other Measures Act 2010 (50 of 2010)

Schedule 1   Amendments relating to people smuggling

Part 1   Main amendments

Migration Act 1958

10   After section 236

Insert:

236A No discharge of offenders without proceeding to conviction for certain offences

The court may make an order under section 19B of the Crimes Act 1914 in respect of a charge for an offence against section 233B, 233C or 234A only if it is established on the balance of probabilities that the person charged was aged under 18 years when the offence was alleged to have been committed.

236B Mandatory minimum penalties for certain offences

(1) This section applies if a person is convicted of an offence against section 233B, 233C or 234A.

(2) This section does not apply if it is established on the balance of probabilities that the person was aged under 18 years when the offence was committed.

(3) The court must impose a sentence of imprisonment of at least:

(a) if the conviction is for an offence against section 233B - 8 years; or

(b) if the conviction is for a repeat offence - 8 years; or

(c) in any other case - 5 years.

(4) The court must also set a non-parole period of at least:

(a) if the conviction is for an offence to which paragraph (3)(a) or (b) applies - 5 years; or

(b) in any other case - 3 years.

(5) A person's conviction for an offence is for a repeat offence if:

(a) in proceedings after the commencement of this section (whether in the same proceedings as the proceedings relating to the offence, or in previous proceedings), a court:

(i) has convicted the person of another offence, being an offence against section 233B, 233C or 234A of this Act; or

(ii) has found, without recording a conviction, that the person has committed another such offence; or

(b) in proceedings after the commencement of the Border Protection (Validation and Enforcement Powers) Act 2001 (whether in the same proceedings as the proceedings relating to the offence, or in previous proceedings), a court:

(i) has convicted the person of another offence, being an offence against section 232A or 233A of this Act as in force before the commencement of this section; or

(ii) has found, without recording a conviction, that the person has committed another such offence.

(6) In this section:

non-parole period has the same meaning as it has in Part IB of the Crimes Act 1914.