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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Regina v Le

Details

AGLC: Regina v Le [1999] NSWCCA 146
Case: [1999] NSWCCA 146
Decision Date: 7 June 1999

CaseChat Overview and Summary

The appeal was brought by the defendant, who had been convicted of engaging in activities related to the trafficking of drugs, including acting as a translator for others involved in the illicit trade. The matter was heard in the High Court of Australia. The central issue before the court was whether the appellant's sentence should be quashed and set aside due to the exceptional circumstances of family hardship that arose during the period of his incarceration.

The court considered whether the appellant's family situation constituted exceptional circumstances warranting a reduction in his sentence. The court had to determine if the sudden death of the appellant's partner, who was caring for his children, while he was in custody qualified as an exceptional circumstance. The court also had to examine the proportion of the custodial element of the sentence that the appellant had already served while on bail pending the appeal. The High Court needed to decide if these factors were sufficient to warrant a reduction in the appellant's sentence.

In assessing the matter, the court recognised that the appellant had already served a significant proportion of his custodial sentence while on bail pending the appeal. The court found that the appellant's family situation did indeed constitute an exceptional circumstance, as the sudden death of the person caring for his children while he was in custody was an unforeseen and tragic event. The court considered these factors in the context of the appellant's sentence, ultimately determining that they warranted a reduction in the sentence. The court quashed the appellant's sentence and set it aside, taking into account the exceptional circumstances and the proportion of the custodial element already served.

The final orders of the court were that the appellant's sentence be quashed and set aside, recognising the exceptional circumstances of family hardship and the significant proportion of the custodial element of the sentence already served by the appellant before his release on bail pending appeal.

Orders