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Court of Criminal Appeal 22 June 2026

Periasamy v R

[2026] NSWCCA 89

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE APPEALS APPEAL AGAINST SENTENCE

Citation: Periasamy v R [2026] NSWCCA 89
Court: Court of Criminal Appeal
Date: 22 June 2026
Judge(s): Stern JA, Huggett J, Sirtes J (Sirtes J delivering the leading judgment)

Background

The applicant pleaded guilty in the Local Court to attempting to possess a marketable quantity of an unlawfully imported border controlled drug, contrary to ss 11.1(1) and 307.6(1) of the Criminal Code (Cth). The offence arose from a drug importation scheme in which the applicant supplied a residential address for delivery of a parcel concealing 1,087.16 grams of heroin. The Australian Border Force intercepted the parcel, replaced the heroin with an inert substance, and allowed a controlled delivery under police surveillance. The applicant tracked and retrieved the parcel before being arrested.

On 15 April 2025, the sentencing judge in the District Court at Lismore imposed a notional head sentence of 7 years' imprisonment, then applied a 25% discount for the guilty plea. The resulting head sentence was recorded as 5 years and 9 months, with a non-parole period of 3 years. The arithmetically correct result of a 25% reduction from 7 years is 5 years and 3 months, meaning the applicant received a head sentence 6 months longer than the sentencing judge apparently intended.

The applicant sought leave to appeal on five original grounds and was granted leave to add a sixth ground during the hearing, after the arithmetic error was identified in oral submissions.

  • Whether the sentencing judge erred in characterising the objective seriousness of the offence as above the lower end of the range
  • Whether a complaint that insufficient weight was given to mitigating factors constitutes a proper ground of appeal
  • Whether the sentence was unreasonable or plainly unjust
  • Whether the sentencing judge failed to consider all sentencing alternatives, including an Intensive Correction Order (ICO), before imposing imprisonment
  • Whether the sentence was manifestly excessive
  • Whether the sentencing judge's arithmetical miscalculation of the guilty plea discount required the Court of Criminal Appeal to resentence the applicant afresh, or whether the error could simply be corrected

Decision

Ground 1 (Objective seriousness): The sentencing judge characterised the offence as more serious than "well toward the lower end" but "below the mid-range." The Court confirmed that such assessments are classically within the sentencing judge's role and are only appealable where the characterisation was not reasonably open. The sentencing judge had identified all relevant facts, including that the applicant performed a more involved role than a mere courier. The characterisation was reasonably open and no error was established.

Ground 2 (Weight given to mitigating factors): The Court restated that complaints about the weight given to particular sentencing factors are not a proper ground of appeal. The allocation of weight to mitigating circumstances is quintessentially a matter for the sentencing judge. This ground failed.

Ground 4 (Alternatives to imprisonment): Counsel for the applicant at first instance had conceded that a head sentence exceeding 3 years was warranted, which meant a non-parole period would be fixed and an ICO was unavailable. That concession was well made and the applicant could not resile from it on appeal. The applicant's argument that a head sentence of 2 years would have enlivened the ICO option was described as misconceived: the sentencing judge had determined a head sentence to which an ICO could not apply, so there was no occasion to consider one. On a fair reading of the sentencing remarks, the judge had determined that no sentence other than full-time imprisonment was appropriate.

Grounds 3 and 5 (Manifestly excessive and unreasonable): The Court found no manifest error in the sentencing judge's approach. The notional head sentence of 7 years was determined after taking all relevant matters into account, including the applicant's subjective case, and the guilty plea discount was then applied to that figure. A "two-tier" approach would have been erroneous, but the Court was satisfied the sentencing judge had not adopted one. No basis existed to conclude the sentence was unreasonable or plainly unjust. Both grounds failed.

Ground 6 (Arithmetical error in discount): Both parties agreed, and the Court accepted, that the sentencing judge miscalculated the 25% discount on a 7-year notional head sentence. The correct head sentence was 5 years and 3 months, not 5 years and 9 months. The Court held the error was discrete and did not vitiate the sentencing discretion: the judge's intention was clear and could be given effect by correcting the head sentence alone. The Crown submitted the Court should resentence afresh, but the Court rejected that approach, finding it would introduce unnecessary delay and complexity. The appeal was allowed on this ground only and the head sentence was corrected accordingly.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by Priestley SC DCJ on 15 April 2025 quashed
  • In lieu thereof, the applicant sentenced to imprisonment for 5 years and 3 months, commencing 10 October 2024 and expiring 9 January 2030, with a non-parole period of 3 years expiring 9 October 2027

Key Takeaways

  • A sentencing judge's characterisation of objective seriousness is only appealable if the characterisation was not reasonably open on the facts: a disagreement with the assessment does not establish error.
  • Complaints that a sentencing judge gave insufficient weight to a mitigating factor are not a proper ground of appeal; the allocation of weight is a matter within the sentencing judge's exclusive domain.
  • Where a sentencing judge makes a discrete arithmetical error that does not vitiate the exercise of the sentencing discretion, and the judge's intention is clear from the remarks, the Court of Criminal Appeal may correct the error directly without resentencing afresh.
  • The Crown's submission that resentencing afresh was required did not bind the Court of Criminal Appeal: broadening the scope of appellate intervention where a simple correction suffices adds delay and complexity without corresponding benefit.
  • An applicant cannot raise on appeal an argument about sentencing alternatives, such as an ICO, where their own counsel expressly conceded at first instance that a head sentence placing the matter beyond the reach of that alternative was appropriate.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 16A, 17A, 19AB, 20AB, Pt IB
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7, 44, 68, Pt 5
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Criminal Code (Cth), ss 11.1, 307.6

Cases
- Ahmad v R [2021] NSWCCA 30
- Baldwin v R [2026] NSWCCA 39
- Barbaro v The Queen (2014) 253 CLR 58
- Bektasovski v R [2022] NSWCCA 246
- Bugmy v The Queen (2013) 249 CLR 571
- Christian v R [2021] NSWCCA 300
- Conte v R [2018] NSWCCA 209
- DB v R [2024] NSWCCA 18
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
- El-Sayed v R [2018] NSWCCA 250
- Hancock v R [2025] NSWCCA 213
- Hili v The Queen (2010) 242 CLR 520
- House v The King (1936) 55 CLR 499
- JA v R [2024] NSWCCA 130
- Kentwell v The Queen (2014) 252 CLR 601
- Markarian v The Queen (2005) 228 CLR 357
- Obeid v R (2017) 96 NSWLR 155
- Patel v The Queen (2012) 247 CLR 531
- Vamadevan v R (2024) 116 NSWLR 195
- YZ v R [2025] NSWCCA 165
- Zreika v R [2012] NSWCCA