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Court of Criminal Appeal 24 April 2026

Sayyaketh v R (Cth)

[2026] NSWCCA 48

Drugs
CRIME APPEAL AGAINST SENTENCE COMMONWEALTH OFFENCE CONTROLLED DRUG TIME IMPRISONMENT GROUND CONCEDED TO BY RESPONDENT

Citation: [2026] NSWCCA 48
Court: Court of Criminal Appeal (NSW)
Date: 24 April 2026
Judge(s): Stern JA at [1]; Dhanji J at [2]; R A Hulme AJ at [45]

Background

The applicant pleaded guilty to one count of aiding, abetting, counselling or procuring the commission of an attempt to possess a commercial quantity of an unlawfully imported border-controlled drug (heroin), contrary to ss 11.2(1), 11.1(1) and 307.5(1) of the Criminal Code (Cth). The offence carries a maximum penalty of life imprisonment. Her role involved tracking the delivery status of a parcel containing approximately 2.1 kg of pure heroin that had been intercepted by authorities and subjected to a controlled delivery.

The District Court sentenced the applicant to 3 years' imprisonment, to be served by way of 2 years' full-time custody followed by release on recognizance. The applicant's primary submission at sentencing had been that, while the threshold for imprisonment under s 17A of the Crimes Act 1914 (Cth) was met, she should be released immediately on a recognizance release order rather than serving any period in custody.

On appeal, the applicant pressed a single ground: that the sentencing judge erred by failing to consider alternatives to full-time custody.

  • Whether the sentencing judge erred by failing to consider and give reasons for rejecting the applicant's submission that she should be released immediately on a recognizance release order, rather than serving a period of full-time custody.
  • If error was established, whether the sentence should be set aside and the applicant resentenced.
  • On resentence, what was the appropriate length of the pre-release period (the portion of the sentence to be served in full-time custody)?

Decision

The Court of Criminal Appeal (Dhanji J, with Stern JA and R A Hulme AJ agreeing) held that the sentencing judge's failure to address the applicant's central submission constituted error. The applicant's case on sentence had squarely raised the question of whether she should be released immediately on recognizance. The sentencing judge was required to consider that submission and provide reasons for rejecting it. Instead, the judge moved directly to determining how much of the sentence should be served in full-time custody, without explaining why immediate release was not appropriate.

The respondent (the Commonwealth) conceded this ground, and the Court found the error was material. Applying the reasoning in YZ v R [2025] NSWCCA 165, along with principles from Stanley v DPP (NSW) and Vamadevan v R, the Court emphasised the structured approach required when sentencing federal offenders. A sentencing judge must work through the steps mandated by the relevant Commonwealth provisions, including genuine consideration of alternatives to full-time imprisonment where those alternatives are put in issue.

On resentence, the Court adopted the sentencing judge's starting point of 40 months, reduced to 36 months after a 10% discount for the utilitarian value of the late guilty plea. The key question was the length of the pre-release period. The Court reduced it from 24 months to 18 months, giving particular weight to the burdensomeness of the applicant's incarceration. The applicant's children reside in Laos, and the separation from them made her custody especially onerous. The Court noted that the case was a considerable distance from one attracting the maximum penalty, citing The Queen v Kilic.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • The sentence imposed in the District Court set aside.
  • The applicant resentenced to imprisonment for 3 years, with a pre-release period of 18 months (reduced from 2 years), after which she is to be released on recognizance.

Key Takeaways

  • Sentencing a Commonwealth offender requires the judge to address each step in the structured framework established by sections 16A, 17A, 19AF and 20 of the Crimes Act 1914 (Cth). A failure to engage with any step, particularly the question of whether alternatives to full-time custody are appropriate, constitutes appellable error.

  • The Court of Criminal Appeal held, consistently with YZ v R, that where a defendant's primary submission is for immediate release on recognizance, the sentencing judge is obliged to engage with that submission and provide reasons for rejecting it. A failure to do so constitutes a material error, not merely a technical one.

  • Detailed evidence of disproportionate burdensomeness of custody, such as family separation, health conditions, and remoteness from support, was found to meaningfully influence the length of pre-release custody. The Court gave particular weight to the applicant's separation from her children overseas when reducing the period to be served.

  • Although the Crown conceded the sentencing error on appeal, the Court undertook its own independent analysis before agreeing the ground was made out and proceeding to resentence, rather than simply accepting the concession without scrutiny.

  • A 10% discount for the utilitarian value of a guilty plea entered on the first day of trial was accepted and not disturbed on resentencing, confirming that even very late pleas in Commonwealth matters attract some discount.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), ss 4AA, 16A, 17A, 19AF, 20
- Criminal Code (Cth), ss 5.4, 11.1, 11.2, 307.5
- Criminal Appeal Act 1912 (NSW), s 5

Cases:
- DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Larkin v The Queen [2012] WASCA 238
- Paul Campbell v R [2018] NSWCCA 87
- Stanley v Director of Public Prosecutions (NSW) (2023) 278 CLR 1; [2023] HCA 3
- The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48
- Vamadevan v R (2024) 116 NSWLR 195; [2024] NSWCCA 223
- YZ v R [2025] NSWCCA 165