Regina v Nguyen

[1999] NSWCCA 441

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.

Inadequate Interpreting Facilities

7    Strictly, the claim that she did not have adequate interpreting facilities is a matter which would go to conviction. However, as I understand the way the applicant puts her case, limited as it is to sentence, it is that the interpreting facilities were so inadequate that his Honour formed a wrong and too serious a view of the applicant’s role in the importation.

8    The applicant claims that she had difficulty with the interpreter, in that the interpreter was not translating all that happened during the trial and would tell her when to answer yes or no.

9    The question of the accuracy and therefore the adequacy of interpreting was raised in Saraya (1993) 70 A Crim R 515. On appeal, the court admitted expert evidence as to the translation of questions asked by the Crown Prosecutor of the appellant in cross-examination and the appellant’s answers. Badgery-Parker J stated at 516 that he was:

“satisfied that the deficiencies in interpretation were such that the appellant was unable to give an effective account of the facts vital to his defence.”

10    He continued:

“The fact that the defence was, as it seems to me, a weak one, made it even more important to the fairness of the trial that [the appellant] should have been able to explain to the jury clearly and vividly the facts on which he relied to discharge the evidentiary onus which would put the Crown in the position of having to exclude any reasonable possibility that the offence was committed under duress …
Where an accused person is unable to adequately give evidence in the English language, the right to the use of an interpreter for the purpose of his giving evidence must in my view be regarded as an essential incident of a fair trial; and the trial will be unfair if an interpreter is not provided: Dietrich (1992) 177 CLR 292 … Equally, it will be unfair if the interpreter lacks the skill and ability to translate accurately the questions asked by counsel and the answers given by the accused person .” (emphasis added)

11    The conviction was set aside and a new trial ordered.

12    In this case, the Court does not have the benefit of any such expert evidence. It is apparent that the applicant did not have the financial means or the legal skills necessary to be able to adduce evidence. I do not say that in any way to criticise the applicant, but merely to state as a fact that there is no such evidence before this Court.

13    The Court has had the opportunity of reading the transcript of the court proceedings. That evidence reveals that the applicant was effectively caught red-handed in the commission of the crime. A reading of the transcript of the appellant’s evidence does not indicate any difficulty of interpreting. In my opinion therefore, the first ground of appeal should be dismissed.

14    That leaves the second ground, his Honour’s failure to take into account relevant evidence on sentence. The applicant stated that she wrote a letter to the court for the sentencing hearing and that letter was not translated or presented.

15    His Honour did not refer to a letter from the applicant in sentencing. A letter supplied in the appeal book, which is partially translated, appears to be dated 25 October 1999, after the date of sentence, and refers to the applicant’s family situation. It is not clear which letter the applicant is referring to in her application for leave to appeal against sentence.

16    A further letter is provided from the applicant’s children, dated 3 November 1999, also after sentencing.

17    I think that it is appropriate to treat this basis of the appeal as being a complaint that the trial judge did not have adequate regard for the distressing circumstances in which the applicant finds herself by being imprisoned when she has six children to care for.

18    In my opinion, the trial judge clearly considered the impact of a prison sentence on the applicant’s children. His Honour stated at page 7 of his remarks on sentence:

She also has four children … Sorry, six children and they are now, at the present stage, having to care for themselves as a family group. I have been supplied with a letter today from the eldest Cuong Cao, who is 22 years of age and apparently endeavouring to accept responsibility for the family. I have read his letter and I sympathise greatly with the material he has set out therein and with his concern for the welfare of his mother and indeed for the family itself. I accept that she was and has been a caring parent in difficult circumstances and that I should take that into account. However, it does not seem to me, bearing in mind the seriousness of the offence, that this is a factor which would justify me in ordering her release today.”

19    His Honour later in his reasons directed that the applicant serve a minimum term of four years, “bearing in mind in particular her age and other responsibilities and antecedents”. Clearly, whilst the trial judge accepted that the applicant had been a “caring parent in difficult circumstances”, he did not consider this factor would justify her release, bearing in mind the seriousness of the offence.

20    Leniency will not be granted to persons who participate in crimes of this sort merely because they were in the lower rungs of the organisational structure or performed the more menial operations, such as Mrs Nguyen yet.

21    The sentence imposed by his Honour was within the range of sentences imposed in cases of this sort and I see no error in his Honour’s judgment.

22    Mrs Nguyen has provided material to the Court which indicated that she has worked very hard in gaol and it would seem she would probably be classified as a model prisoner. That is all to her credit, as is her continuing concern for her children and for their suffering. However, the principles are clear, the judgment of his Honour was such as to impose an appropriate sentence and I do not consider that this Court can interfere.

23    NEWMAN J: I agree.

24    GREG JAMES J: I do also.