Regina v Nguyen [1999] NSWCCA 441

New South Wales Court of Criminal Appeal CITATION : Regina v Nguyen [1999] NSWCCA 441 FILE NUMBER(S) : CCA 60668/98 HEARING DATE(S) : 10/12/99 JUDGMENT DATE : 10 December 1999

PARTIES : Regina Thi Nga Nguyen JUDGMENT OF : Beazley JA at 1; Newman J at 22; Greg James J at 23

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/1052 LOWER COURT JUDICIAL OFFICER : Cantrill ADCJ

COUNSEL : Crown: G J Bellew Appellant: In Person SOLICITORS : Crown: Commonwealth Director of Public Prosecutions Appellant: In Person CATCHWORDS : Sentence appeal; Importation commercial quantity of heroin; inadequate interpreting facilities; relevant evidence ACTS CITED : Customs Act 1901 (Cth) CASES CITED: R v Saraya (1993) 70 A Crim R 515 DECISION : Leave to appeal granted; Appeal dismissed

IN THE COURT OF

CRIMINAL APPEAL

CCA 60668/98

BEAZLEY JA NEWMAN J GREG JAMES J

Friday, 10 December 1999

REGINA v THI NGA NGUYEN

JUDGMENT

1 BEAZLEY JA: This is an application for leave to appeal against the severity of sentence. The applicant appears in person. 2 On 8 July 1998, the applicant was found guilty by a jury of an offence under s 233B(1)(d) of the Customs Act 1901 (Cth) of being knowingly concerned in the importation of prohibited imports, being a commercial quantity of heroin. The quantity involved was 6.534 kilograms of an average purity of 71 per cent to 74 per cent, the equivalent of 4.775 kilograms of pure heroin. A commercial quantity of heroin is 1.5 kilograms. The maximum penalty for an offence under s 233B(1)(d) is imprisonment for life or for such period as the court thinks appropriate: s 235(2)(c)(i). 3 The applicant was treated by the trial judge as a courier and sentenced to a term of imprisonment of eight years with a non-parole period of three years, nine months. The sentence commenced on 8 July 1998 and the non-parole period expires on 7 April 2002 (taking into account two months and ten days of pre-trial custody). 4 His Honour's findings were that the applicant had supplied an address, closely connected to an address at which she had lived previously, to where the consignment would be delivered, and that she collected the consignment from that address and delivery to Silverwater. 5 The Notice of Appeal, dated 2 November 1999, states that the applicant desires to appeal against sentence only. The Grounds of Appeal are stated as being: "Appeal being lodged against the severity of sentence. Mrs Nguyen has six children, she states that she had difficulty with the interpreter during the trial. The interpreter was not translating all that happened during the trial and would tell Mrs Nguyen when to answer yes or no. Mrs Nguyen wrote a letter to the court for sentencing and that letter was not translated or presented." 6 I understand the effect of this ground to be that the applicant claims she was denied procedural fairness on two bases. Firstly, in not having adequate interpreting facilities available to her during the course of the trial. Secondly, that the trial judge failed to take into account relevant evidence on sentence.