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Aggravated People Smuggling – Danger of Death or Serious Harm

Aggravated people smuggling – danger of death or serious harm is an offence under section 73.2 of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 20 years in prison.m

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You organised or facilitated the entry of another person into a foreign country
  2. The entry did not comply with the foreign country’s requirements for entry
  3. The other person was not a citizen or permanent resident of the foreign country, and
  4. You subjected the other person to cruel, inhuman or degrading treatment, or your conduct gave rise to a danger of death or serious harm to the other person, or you were reckless as to whether your conduct gave rise to a danger of death or serious harm to the other person.

It is immaterial whether entry into the foreign country was via Australia.

You were ‘reckless’ if you were aware there was a substantial risk that your conduct would give rise to a danger of death or serious harm to the other person, but you went ahead with your actions regardless.

You are not guilty of the offence unless:

  1. You were an Australian citizen or resident at the time of your conduct, and your conduct occurred wholly outside Australia, or
  2. Your conduct occurred wholly outside Australia, and the result of your conduct occurred, or you intended it to occur, wholly outside Australia.

Proceedings for the offence cannot be commenced without the Attorney-General’s consent.

Defences to the charge include duress and self-defence.

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