Regina v Le [1999] NSWCCA 146

Reported Decision : 107 A Crim R 355

New South Wales Court of Criminal Appeal CITATION : Regina v Le [1999] NSWCCA 146 FILE NUMBER(S) : CCA 60814/98 HEARING DATE(S) : 7 June 1999 JUDGMENT DATE : 7 June 1999

PARTIES : Regina v Lieu Thi Le JUDGMENT OF : Grove J at 1; Carruthers AJ at 15

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/21/2207 LOWER COURT JUDICIAL OFFICER : Rummery DCJ

COUNSEL : R.D. Ellis (Crown) B.D. Brassil, solicitor (Applicant) SOLICITORS : C.K. Smith (Crown) Bernard D. Brassil & Co (Applicant) CATCHWORDS : Criminal Law and Procedure - Sentence - Acting as language translator in discussion by others of narcotics dealing - Exceptional circumstances of family hardship - Sudden death of person caring for children while appellant in custody - Significant proportion of custodial element of sentence served before release on bail pending appeal DECISION : Appeal allowed

IN THE COURT OF CRIMINAL APPEAL

60814/98

GROVE J CARRUTHERS AJ

7 June 1999

REGINA v LIEU THI LE

JUDGMENT 1 GROVE J : This is an application for leave to appeal against the severity of sentence imposed by Rummery DCJ in the Liverpool District Court. On that occasion the applicant appeared before his Honour on a single count of supplying a prohibited drug namely heroin. His Honour sentenced the applicant to a total term of three years imprisonment which he divided into minimum and additional term components of six months and two years and six months respectively. 2 The facts giving rise to the offence were unusual. The applicant is a young woman without prior convictions and had the care of her two daughters, aged at the time five years and eleven years. It appears, she being fluent in both Vietnamese and English, she acted as an interpreter in a conversation between her friend and a second person who, in the event, turned out to be an undercover police operative. 3 The facts upon which the learned sentencing judge was asked to deal with the applicant included reference to acting as an interpreter on one occasion between the persons whom I have mentioned at an address in Liverpool. On that occasion the conversation related to the intended sale of twelve ounces of heroin for the sum of $72,000. The typed statement of facts prepared by the relevant Federal agent uses language in which it is said that the applicant "negotiated" with the operative acting as an interpreter for her friend. His Honour did not find that the applicant was a negotiator in the usual sense that that word is used and rather it is to be said she was acting as a mere conduit between the two languages. 4 The proposed deal, it appears, did not in fact take place although another arrangement with which the applicant was not concerned (even as a translator) apparently did take place. There were, however, noted to have been meetings between those involved in the criminal activities, including meetings at the applicant's home. There was no evidence before his Honour from which a sinister inference against the applicant could be drawn in relation to those meetings. However it was an agreed fact before his Honour that acting as such an interpreter the applicant had a full and conscious understanding of the topic of discussion was the supply of heroin and it was not possible the parties were talking about anything else. 5 The division of the total sentence into minimum and additional terms so favourable to the applicant (in terms of the lesser period to be served in custody) followed a finding by the learned sentencing judge that the role of the applicant in the operation was a minimal one. That is a finding that must stand for present purposes, although I am moved to comment that it is frequently observed to be the case that dealing in illicit drugs can only be achieved by the contributions of many people, some of whose individual contributions might be seen to be relatively small or minimal but without which the total criminality could not be achieved. 6 I would not for myself have regarded the essential contribution of communication between two intending participants in a criminal enterprise as only minimal. Nevertheless, as I have indicated, that was the sentencing judge's finding and it is not the subject of challenge in the present application. 7 By consent certain material has been put before the Court. As I have indicated, the applicant had the care of two relatively small children. That families of people who commit crimes are going to suffer is an inevitable consequence of punishment by detention. It is only in the most exceptional cases that the effect upon family can have a direct effect upon the appropriateness of the sentence. 8 In this case by way of background the judge had been informed that the applicant was the carer for the two children and although she did not reside with their father, it appears that relations between them were cordial. What has happened since sentence is that when the applicant was taken into custody as ordered by his Honour the children's father assumed his responsibility for their care. In early January he died. Thereafter a relative of the applicant took the children into her home, adding to her responsibility for children of her own. We have some briefly sketched facts put before the Court by agreement and it can be stated that the arrangements for the children are less than satisfactory. 9 The applicant was released on bail pending this appeal in February. She had served in custody some two months and eight days, or more than one-third of the custodial element of the sentence passed upon her by his Honour Rummery DCJ. 10 The whole of the circumstances are unusual. It is of course a matter which could not have been anticipated at the time of sentence that the father of the children, having assumed his responsibility, would die. Having regard to the proportion of custody already served and the matters to which I have referred, I have come to the conclusion that the balance of justice would be served if the appeal were allowed and a sentence substituted which would enable the applicant to continue the care of her children without being returned to custody. 11 As this Court is embarking upon re-sentence, we have heard certain submissions relative thereto and I am persuaded from the substance of the assurances of the applicant given to the Court through her counsel that she has perceived the error of her ways and she is unlikely further to offend. 12 It can be noted that when interviewed for the purpose of the pre-sentence report, the applicant expressed the view she had worked only as a translator and was not involved in the physical exchange of drugs. That, of course, is the fact but it would appear that she has now realised the importance of her contribution even though in one sense it can be seen to be simply acting as a translator. 13 I therefore propose the following orders: 1. That the application for leave to appeal against sentence be granted.