Citation: R v Periasamy [2025] NSWDC 130
Court: District Court of New South Wales
Date: 15 April 2025
Judge(s): Priestley SC DCJ
Background
The offender, a 31-year-old man, pleaded guilty to one charge of attempting to possess a border-controlled drug, namely heroin, that had been unlawfully imported into Australia. The offence occurred on 25 October 2022, when a consignment of approximately 1,388 grams of heroin (with a pure weight of 1,087.16 grams) arrived concealed within fishing equipment in a DHL parcel sent from Malaysia to a residential address in Woolgoolga, New South Wales.
The Australian Border Force intercepted the parcel and police arranged a controlled delivery. The offender attended the delivery address shortly after a confirmation message was sent to the consignee phone number, which was found in his possession when police stopped his vehicle. He was also found to have additional mobile phones and fishing equipment from the controlled delivery.
In a police interview, the offender stated he had been recruited through social connections to collect the parcel for payment of $3,500, to be taken to Melbourne. He said he knew the parcel contained drugs but believed the quantity was small. He admitted to tracking earlier deliveries and to deleting communications at the direction of his handlers.
Legal Issues
- What was the appropriate assessment of the offender's objective seriousness, having regard to the quantity of heroin, his role, and his level of involvement before the day of collection?
- What weight should be given to the offender's subjective circumstances, including age, personal history, mental health, family situation, and prospects for rehabilitation?
- What sentence was appropriate, including the applicable discount for an early guilty plea under Commonwealth sentencing principles?
Decision
Objective seriousness: The court found that the pure heroin quantity of 1,087.16 grams significantly exceeded the marketable quantity threshold of 2 grams and sat much closer to the commercial quantity of 1,500 grams. His Honour rejected the characterisation of the offender as a mere functionary or dupe. The offender had tracked the delivery, used a dedicated phone for the consignment, deleted relevant communications, and had some involvement in earlier deliveries to the same address. Drawing on El Ghourani v R [2009] NSWCCA 140, the court accepted that the surrounding circumstances of how a person comes to possess a controlled drug are relevant to moral culpability, and that the offender's pre-collection conduct heightened that culpability.
Role: The court did characterise the offender as an "expendable intermediary" rather than an organiser or investor. He brought no financial investment or specialised expertise, used his own car, acted on instructions, and received a modest promised reward of $3,500 that the court inferred was never paid. He was aware the parcel contained drugs but genuinely believed the quantity was small.
Subjective case: The offender's subjective circumstances were described as "quite favourable." He had no prior criminal history, was relatively young at the time of the offence, had stable family and employment background, and demonstrated genuine remorse. Post-arrest mental health difficulties were accepted as likely to make custody more onerous, though they did not reduce his moral culpability given they appeared to have arisen after the offence. The court accepted that the offending was an aberration and that reoffending was unlikely.
Sentence: Before applying any discount, the court assessed a head sentence of 7 years imprisonment as appropriate. A 25 percent discount for the early guilty plea reduced the head sentence to 5 years and 9 months. The non-parole period was set at 3 years, reflecting the seriousness of the offence and the need for general deterrence, while also allowing a substantial period of parole supervision to support the offender's rehabilitation given language difficulties, mental health, and his background.
Orders Made
- The offender was convicted of one charge under sections 11.1(1) and 307.6(1) of the Commonwealth Criminal Code (attempt to possess a border-controlled drug of a marketable quantity).
- The offender was sentenced to a term of imprisonment commencing 10 October 2024, with a non-parole period of 3 years expiring on 9 October 2027.
- The balance of term is 2 years and 9 months, expiring on 9 July 2030.
- The offender will first be eligible for parole on 9 October 2027.
Key Takeaways
- The District Court confirmed that, in possession-related drug offences, the surrounding circumstances leading up to the act of possession, including preparatory conduct, tracking of deliveries, and communications management, are relevant to assessing moral culpability, consistent with El Ghourani v R [2009] NSWCCA 140.
- An offender who acts as a paid intermediary in a drug importation chain but lacks decision-making authority, financial investment, or specialised expertise may be characterised as an "expendable intermediary," which the court treated as a mitigating factor going to role rather than a complete shield from elevated culpability.
- A 25 percent discount for an early guilty plea was applied under Commonwealth sentencing principles, reducing a pre-discount head sentence of 7 years to 5 years and 9 months.
- Where post-offence mental health difficulties are unlikely to have existed at the time of the offending, the court held they do not reduce moral culpability but may properly be taken into account as a factor making custody more onerous, affecting the structure of the sentence.
- Quantity of a border-controlled drug remains a relevant (though not determinative) factor in sentencing: proximity to the commercial quantity threshold carried appreciable weight in the overall assessment of seriousness.
Legislation and Cases Referenced
Legislation
- Criminal Code (Cth)
- Crimes Act 1914 ( Cth)
Cases
- Dang & Tran [2015] NSWCCA 163
- El Ghourani v R [2009] NSWCCA 140
- Totaan [2022] NSWCCA 7
- OPQ [2012] VSCA 115
- Todorovski [2010] NSWCCA 75