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Court of Criminal Appeal 7 June 1999

Regina v Le

[1999] NSWCCA 146

Also reported as 107 A Crim R 355
Drugs
CRIMINAL LAW AND PROCEDURE SENTENCE

Citation: Regina v Le [1999] NSWCCA 146
Court: New South Wales Court of Criminal Appeal
Date: 7 June 1999
Judge(s): Grove J; Carruthers AJ

Background

The appellant was a young Vietnamese-Australian woman with no prior convictions and sole care of two daughters aged five and eleven. She was convicted in the Liverpool District Court of supplying a prohibited drug (heroin) following a single incident in which she acted as a language interpreter between her friend and an undercover police operative. The conversation concerned a proposed sale of twelve ounces of heroin for $72,000.

The proposed deal did not proceed, and the sentencing judge found that the appellant's role was minimal: she acted as a conduit between Vietnamese and English speakers, not as a negotiator in any meaningful sense. The District Court nonetheless imposed a total term of three years imprisonment, divided into a minimum term of six months and an additional term of two years and six months.

Following sentence, the appellant was taken into custody and the children's father assumed their care. He died in early January 1999. A relative took the children in but the arrangements were described as unsatisfactory. The appellant was released on bail pending this appeal in February 1999, having served approximately two months and eight days in custody.

  • Whether the sentence imposed was excessive having regard to the appellant's minimal role as a translator rather than an active drug negotiator.
  • Whether the exceptional family circumstances arising after sentencing, specifically the sudden death of the person caring for the children during the appellant's custody, justified a reduction in sentence on appeal.
  • Whether the proportion of the custodial element already served before release on bail pending appeal was a relevant consideration in resentencing.

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal. Grove J accepted that the sentencing judge's finding of a minimal role was not challenged and must stand, though he noted his own view that acting as an interpreter between two parties to a criminal enterprise was not, in itself, a trivial contribution.

The Court confirmed that family hardship caused by a person's imprisonment is an ordinary and expected consequence of custodial sentences, and that it is only in the most exceptional cases that its effect on family members can bear directly on the appropriate sentence. The sudden death of the children's father after the appellant began serving her sentence was found to constitute such an exceptional circumstance, as it was entirely unforeseeable at the time of sentencing and left the children in unsatisfactory care arrangements.

The Court also took into account that the appellant had already served more than one-third of the custodial element of her original sentence before being released on bail. Considering all these factors together, the Court concluded that the balance of justice required resentencing to a term that would allow her to be released to parole immediately and to resume care of her children without returning to custody.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal allowed.
  • Sentence imposed by the District Court quashed.
  • In substitution, a total term of two years, five months and twenty-seven days imprisonment imposed, comprising:
  • A minimum term of five months and twenty-seven days commencing 10 December 1998 and expiring 6 June 1999.
  • An additional term of two years commencing 7 June 1999.
  • Appellant released to parole on 7 June 1999, subject to supervision by the Probation and Parole Service.

Key Takeaways

  • Family hardship resulting from a custodial sentence will only affect the appropriateness of that sentence in the most exceptional cases; ordinary suffering by a prisoner's family does not, of itself, warrant a reduction.
  • Where a wholly unforeseeable event occurs after sentencing that materially worsens the impact of custody on dependent children, such a development may constitute the kind of exceptional circumstance capable of justifying resentencing on appeal.
  • The proportion of the custodial element already served before release on bail pending appeal is a legitimate consideration when a court of criminal appeal resentences an applicant.
  • A finding by the original sentencing judge, not challenged on appeal, will generally stand as the factual foundation for the appellate court's resentencing exercise, even where individual members of the appellate court might have assessed the matter differently.
  • Acting as a translator in a drug supply transaction, with full knowledge that the subject of the discussion is the supply of heroin, constitutes participation in the relevant criminal enterprise, even where no physical handling of drugs occurs.

Legislation and Cases Referenced

Legislation: None specified in the judgment or metadata.

Cases: None cited in the judgment or metadata.