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[2026] NSWCCA 89
Court of Criminal Appeal (NSW)
2026-06-22
Stern JA at [1] Huggett J at [2] Sirtes J at [3]
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Periasamy v R [2026] NSWCCA 89
Hearing dates: 1 June 2026
Date of orders: 22 June 2026
Decision date: 22 June 2026
Before: Stern JA at [1]
Huggett J at [2]
Sirtes J at [3]
Decision: (1) Grant leave to appeal.
(2) Allow the appeal.
(3) Quash the sentence imposed by Priestley SC DCJ on 15 April 2025 and, in lieu thereof, sentence the Applicant to a term of imprisonment of 5 years and 3 months, commencing on 10 October 2024 and expiring on 9 January 2030, with a non-parole period of 3 years expiring on 9 October 2027.
Catchwords: CRIME – appeals – appeal against sentence – whether sentencing judge erred in assessment of objective seriousness – whether a complaint about weight given to a factor is a proper ground of appeal – whether sentencing judge failed to consider alternatives to imprisonment – whether sentence manifestly excessive
CRIME – appeals – appeal against sentence – where arithmetical error occurs which does not vitiate the sentencing discretion – whether an appellate court is required to re-exercise the sentencing discretion afresh where error is established – discussion of the ability of a party to inform the court’s approach on proceeding to resentencing or correcting the error only
Legislation Cited: 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 Cited: Ahmad v R [2021] NSWCCA 30
Baldwin v R [2026] NSWCCA 39
Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
Bektasovski v R [2022] NSWCCA 246; 407 ALR 125
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Christian v R [2021] NSWCCA 300
Conte v R [2018] NSWCCA 209; 86 MVR 239
Dadson v O’Brien [1998] TASSC 75
Daher v R [2026] NSWCCA 26
DB v R [2024] NSWCCA 18
DH v R [2022] NSWCCA 200
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
El-Ghourani v R [2009] NSWCCA 140; 195 A Crim R 208
El-Sayed v R [2018] NSWCCA 250
Fedele v R [2015] NSWCCA 286; 257 A Crim R 78
Hancock v R [2025] NSWCCA 213
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
JA v R [2024] NSWCCA 130
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Kochai v R [2023] NSWCCA 116
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
MT v R [2026] NSWCCA 25
Mulato v R [2006] NSWCCA 282
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29
R v Thompson [2025] NSWCCA 133
R v White [2025] NSWCCA 111
SB v R [2022] NSWCCA 164
TH v R [2025] NSWCCA 121
Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75
Tuhi v R [2025] NSWCCA 115
Vamadevan v R (2024) 116 NSWLR 195; [2024] NSWCCA 223
YZ v R [2025] NSWCCA 165
Zeiser v R [2020] NSWCCA 154
Zreika v R [2012] NSWCCA 44; 223 A Crim R 460
Category: Principal judgment
Parties: Aravind Periasamy (Applicant)
Rex (Respondent)
Representation: Counsel:
J Masters (Applicant)
D New (Respondent)
Solicitors:
Peter Agoth & Associates (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)
File Number(s): 2022/00319268
Publication restriction: N/A
[This headnote is not to be read as part of the judgment]
The Applicant pleaded guilty to attempting to possess a marketable quantity of an unlawfully imported border controlled drug. He was recruited to participate in a drug importation scheme. He supplied a residential address to which a parcel in which 1087.16 grams of heroin was concealed was to be delivered by a commercial shipping company. That parcel was intercepted by the Australian Border Force. In a controlled operation by the New South Wales Police, the heroin was replaced with an inert substance, and the parcel was allowed to be delivered under police surveillance. The Applicant tracked the parcel and retrieved it. He was then arrested.
On 15 April 2025, the Applicant was sentenced to imprisonment for 5 years and 9 months, with a non-parole period of 3 years. The head sentence was determined by the Sentencing Judge’s stated application of a 25% discount to a notional head sentence of 7 years’ imprisonment.
The Applicant sought leave to appeal against that sentence on six grounds:
The Sentencing Judge erred by not finding the offence fell towards the lower end of the range of objective seriousness, resulting in a sentence that was too severe.
The Sentencing Judge erred in failing to give sufficient weight to the mitigating circumstances when considering sentence.
The Sentencing Judge erred when exercising his discretion in that the sentence is unreasonable or plainly unjust and as a result a substantial wrong has occurred.
The Sentencing Judge failed to consider all other available sentences before passing a sentence of imprisonment.
The sentence imposed is manifestly excessive.
The Sentencing Judge erred in applying a discount of 25% to the notional head sentence of 7 years’ imprisonment by imposing a head sentence of 5 years and 9 months’ imprisonment, rather than a head sentence of 5 years and 3 months’ imprisonment.
The Court (Sirtes J, Stern JA and Huggett J agreeing) held, granting leave to appeal and allowing the appeal:
As to Ground 1:
Mulato v R [2006] NSWCCA 282; Hancock v R [2025] NSWCCA 213, cited.
As to Ground 2:
Ahmad v R [2021] NSWCCA 30; R v White [2025] NSWCCA 111; Tuhi v R [2025] NSWCCA 115; TH v R [2025] NSWCCA 121; R v Thompson [2025] NSWCCA 133; Baldwin v R [2026] NSWCCA 39, cited.
As to Ground 4:
Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29; Zreika v R [2012] NSWCCA 44; 223 A Crim R 460, referred to.
Vamadevan v R (2024) 116 NSWLR 195; [2024] NSWCCA 223, applied.
YZ v R [2025] NSWCCA 165, distinguished.
As to Grounds 3 and 5:
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221, cited.
As to Ground 6:
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37; Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255, applied.
Christian v R [2021] NSWCCA 300; DB v R [2024] NSWCCA 18; JA v R [2024] NSWCCA 130, discussed.
STERN JA: I agree with Sirtes J.
HUGGETT J: I agree with Sirtes J.
SIRTES J: Mr Aravind Periasamy applies, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) (the Criminal Appeal Act), for leave to appeal against a sentence imposed upon him by Priestley SC DCJ (the Sentencing Judge) in the District Court at Lismore on 15 April 2025.
The Applicant pleaded guilty in the Local Court to an attempt 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 Sentencing Judge imposed, prior to the application of a discount, a sentence of 7 years’ imprisonment. His Honour allowed a discount of 25% for the plea of guilty and imposed a head sentence of 5 years and 9 months’ imprisonment, with a non-parole period of 3 years. On these calculations, the Applicant would first be eligible for release on parole on 9 October 2027, with the head sentence to expire on 9 July 2030.
The Applicant initially sought leave to appeal on five grounds:
the Sentencing Judge erred by not finding the offence fell towards the lower end of the range of objective seriousness resulting in a sentence that was too severe;
the Sentencing Judge erred in failing to give sufficient weight to the mitigating circumstances when considering sentence;
the Sentencing Judge erred when exercising his discretion in that the sentence is unreasonable or plainly unjust and as a result a substantial wrong has occurred;
the Sentencing Judge failed to consider all other available sentences before passing a sentence of imprisonment; and
the sentence imposed is manifestly excessive.
During the hearing of this application, the Applicant sought leave to rely on an additional proposed ground of appeal, namely, that the Sentencing Judge erred in applying a discount of 25% to the notional head sentence of 7 years’ imprisonment by imposing a head sentence of 5 years and 9 months’ imprisonment, rather than a head sentence of 5 years and 3 months’ imprisonment (Ground 6). The Crown did not oppose leave being granted to rely on this ground and the Court granted the Applicant leave to do so.
After the Crown had the opportunity to consider this ground, of which it only received notice during the Applicant’s oral submissions, it conceded that the Sentencing Judge’s arithmetical error produced a head sentence which was 6 months longer than the sentence his Honour apparently intended to impose.
Accordingly, the Applicant should be granted leave to appeal, and the appeal must be allowed. It was submitted by the Crown that this Court should consequently proceed to resentence the Applicant by exercising the sentencing discretion afresh. I return to consider this question below.
The Agreed Statement of Facts tendered at the Applicant’s sentencing reveals the following about the offence.
On 14 October 2022, a DHL parcel arrived in Australia from Malaysia. It was addressed to a location in Woolgoolga and had a phone number associated with the consignment (the consignee phone number). Officers of Air Cargo New South Wales searched the package, and a white powder-like substance was found concealed between a fishing line and spool in the package. The Australian Border Force seized the consignment and transferred it to the New South Wales Police for investigation. Testing subsequently revealed that the substance contained a pure weight of 1087.16 grams of heroin.
On 24 October 2022, the police created a parcel with similar contents and a similar description to the consignment seized by the Australian Border Force (the substituted consignment) and a controlled delivery was planned for the following day.
At around 2 pm on 25 October 2022, NSW Police delivered the substituted consignment to the delivery address in Woolgoolga. The parcel was placed on the front porch of the house at that address, and officers began surveillance on the property. A delivery confirmation text message was sent to the consignee phone number.
At around 2.10 pm that day, a white sedan registered to the Applicant stopped at the delivery address for about two minutes and then drove away. The vehicle returned eight minutes later and stopped outside the address. It was joined a short while later by a yellow hatchback.
The Applicant exited the sedan carrying a mobile phone and a dark bag. Another man exited the hatchback. Both examined the parcel on the porch. The man then watched the street while the Applicant removed the fishing spools from the parcel. At around 2.43 pm, the Applicant discarded the empty box from the substituted consignment in bins on the property, and both men then loaded the retrieved fishing equipment into the Applicant’s sedan. They then drove away.
The Applicant was stopped by police shortly thereafter. Police searched his vehicle and seized several items, including the fishing spools from the substituted consignment and a mobile phone connected to the consignee phone number. Following his arrest, the Applicant made the following admissions in an electronically recorded interview:
that a friend in Melbourne asked if they could have a parcel delivered to his address for “extra money”;
that he had a feeling something was wrong when he went to collect the consignment and called his friend, who was not otherwise involved, to come and follow his car;
that his friend in Melbourne told him if he collected the parcel and brought it to him in Melbourne, he would pay him in cash. He was told the parcel would contain drugs “little bit only… not much”;
that he needed the money to send to Malaysia;
that this was the first consignment he had collected for them but he had assisted in looking up tracking numbers for previous packages;
that he communicated with these individuals via WeChat. The individuals he communicated with on WeChat asked him to clear their chat history after they spoke;
that he previously resided at the delivery address;
that he was asked to purchase a second phone and was provided the money to do so, to use for the tracking of the consignment. He confirmed he was provided $600 in cash when he was in Melbourne about two months prior to this for this purpose;
that he initially left the consignment location because he had seen police but was told to return. He was asked to video-call the intended recipients in Melbourne via WeChat while opening the consignment so the contents could be verified;
that he was aware when collecting the consignment that it would contain drugs. He was unaware the drugs would be hidden in fishing equipment. He was not aware what kind of drugs would be in the consignment;
that he was to be paid $3,500 to collect the consignment and take it to the intended recipient in Melbourne;
that he was collecting the parcel for someone named Elvin whom he met through someone named William, with whom he worked at a farm;
that after he video-called the intended recipient of the consignment, he was asked to bring the consignment to Melbourne;
that he called DHL to confirm the status of the consignment; and
that he was stressed and needed money because his girlfriend, who resides in Melbourne, was pregnant.
The Sentencing Judge heard submissions on sentence on 24 March 2024. His Honour passed sentence on 15 April 2025. The delay was caused by several adjournments to determine the Applicant’s physical health. No evidence of any health concerns was ultimately tendered.
His Honour commenced by noting the maximum sentence for the offence, being 25 years’ imprisonment, a fine of $330,000, or both. He took that penalty into account as a legislative guidepost indicating the legislature’s view of the seriousness of the offence.
The Applicant had spent 187 days on remand referable to the offence, and the sentence imposed by his Honour was to be backdated accordingly.
The Sentencing Judge also noted that because the matter was a Commonwealth offence, there was no standard non-parole period. The Sentencing Judge also noted that the Applicant was not on conditional liberty at the time of the offence.
His Honour recounted the facts of the offence as set out above.
The Sentencing Judge noted that the “marketable quantity” of heroin referred to in this offence is 2 grams and the Applicant was charged in relation to a quantity of 1087 grams of heroin, which “is self-evidently significantly more than the marketable quantity of 2g, and far closer to the commercial quantity of 1500g than the marketable quantity”. His Honour observed that, while quantity is not the sole or determinative factor in assessing objective seriousness, it was relevant.
In assessing the Applicant’s role in the offence, his Honour determined that he was more than a “mere functionary” or a “mere dupe collecting a parcel” because:
he was involved before the day of the offence in preparations for the collection of the drugs;
he tracked the delivery;
he deleted messages relating to the activity and had a phone for specific use relating to this activity;
he admitted to carrying out “dummy runs” prior to the offence. This increased his moral culpability, but, at the same time, showed “frankness” for which the Applicant should be given credit; and
he knew that there were at least some drugs in the parcel.
The Applicant submitted that the Court was limited in the extent to which it could take into account his conduct leading up to the possession of the substituted consignment. The Sentencing Judge considered that the dummy runs and communications prior to the offence could be taken into account, referring in this regard to the observations of Spigelman CJ (with whom James and Simpson JJ agreed) in *El-*Ghourani v R [2009] NSWCCA 140; 195 A Crim R 208 at 217 [33]:
“[T]he act of possession can be attended by a wide range of moral culpability. The circumstances in which a person charged with a possession offence came into possession of the offending matter, and what it was that the person intended to do with that matter, can all be relevant to determining the degree of moral culpability attached to the act of possession itself.”
Despite the Sentencing Judge’s findings at [22] above, the Sentencing Judge also determined that the Applicant was an “expendable intermediary” because:
he had no decision-making role;
the planning was elementary and the method of collection was “basic and unsophisticated”, which placed the Applicant at “obvious risk of detection”;
the Applicant used his own car and volunteered the consignment address, which was consistent with his “low status in the hierarchy”; and
he may have been unaware of what drug, and in what quantity, he was collecting, although this was given little weight because it was “akin to if not actually wilful ignorance”.
For those reasons, his Honour determined that the offending was more serious than falling at “well toward the lower end of the range”. While the Applicant was low in the hierarchy, his involvement was “far more than trivial”. The Sentencing Judge assessed the Applicant’s conduct at “below the mid-range but more serious than has been contended for”.
The Applicant relied on a psychological report prepared by Ms Thea Gumbert and an affidavit affirmed by him on 24 March 2024. His Honour accepted the Applicant’s history as set out in Ms Gumbert’s report, subject to the qualification referred to at [35] below.
The Applicant is a Malaysian citizen who has resided in Australia since 2018. He did not have a background of disadvantage. He enjoyed a positive family relationship and had no history of abuse or neglect. He was 28 years of age at the time of the offence and 31 at the time of sentencing.
The Sentencing Judge had regard to the Applicant’s motivation to commit the offence. The Applicant contended that, as the eldest child, he was expected to support his family. His father went bankrupt in 2017/2018, which shifted financial responsibility to him. Both of his parents were ill: his father had a leg amputated and required dialysis, while his mother had a heart condition. Consequently, his family had few resources and the Applicant remitted much of his income to them. This financial strain was exacerbated by the flooding of his family’s home and his girlfriend’s pregnancy in 2022. Upon the Applicant’s arrest his girlfriend ended their relationship and terminated the pregnancy.
The Applicant left school in Year 11 and worked full-time. His work history consisted of low-paid agricultural work in Coffs Harbour and Victoria. He attempted to obtain a working visa but was either “misunderstood or duped” in that endeavour. COVID prevented his return to Malaysia in 2020.
The Sentencing Judge recounted how the Applicant came to be involved in the offending. The Applicant met a man at a karaoke bar called KTV. That man suggested that the Applicant would be paid to have a “little bit” of drugs delivered to his home. The Applicant accepted the offer. The Applicant said he was asked to track two packages but not collect them; his Honour concluded these were the “dummy runs”. On the third occasion, he was instructed to collect the package. This was the conduct that constituted the offence.
The Applicant had no history of mental illness before the offending. Depressive symptoms emerged some eight months prior to his being assessed in July 2023. Ms Gumbert diagnosed the Applicant with “major depressive disorder single episode reactive”, in consequence of his arrest, the breakdown of his relationship and the termination of the pregnancy, financial stress, and lack of social support in Australia. His Honour nevertheless noted that the Applicant appeared to enjoy a “significant number of supporters in court” on various occasions.
The Sentencing Judge’s summary of the import of Ms Gumbert’s report was that “what has occurred here is an aberration done in circumstances of financial need”.
The Applicant had no criminal history. He was in good physical health and had no history of drug or alcohol abuse.
His Honour accepted that the Applicant’s time in custody was difficult due to his limited English and a heightened degree of isolation. The bail conditions to which he was subject once released from remand prevented his returning to Malaysia after his father died in September 2023.
The Sentencing Judge acknowledged that the Applicant expressed remorse, embarrassment and shame. His affidavit contained statements of remorse and demonstrated insight into the damage caused by drugs in the community. However, this finding was tempered to a “small extent” by the Applicant’s cross-examination (as foreshadowed at [26] above). His Honour found that the Applicant “did not impress” in cross-examination because he claimed he was not involved in the offending until 25 October 2022, which “cannot be true” because he admitted to his involvement prior to that date in his affidavit. There was also a discrepancy between his oral and affidavit evidence about when he first became aware that he was to collect drugs. The Sentencing Judge concluded that the Applicant “sought to downplay his involvement in the offending”.
Overall, his Honour considered that the Applicant’s subjective case was favourable. The offending was an aberration and he was unlikely to reoffend.
His Honour took into account the sentencing considerations prescribed by s 16A of the Crimes Act 1914 (Cth) (the Crimes Act). He noted that the sentence must be “of a severity appropriate in all the circumstances of the offence”.
The Sentencing Judge acknowledged that s 17A of that Act required that “a term of imprisonment shall not be imposed unless the court is satisfied that no other sentence is appropriate in all the circumstances of the case”. In this regard, his Honour observed that:
“There is no dispute between the parties that there is no sentence that is appropriate in this case other than a term of imprisonment, perhaps best demonstrated by the voluntary return to custody by the offender on 19 November 2024.”
His Honour gave weight to general deterrence because of the impact that the importation of illicit drugs has on the community, although his Honour acknowledged that no drugs were in fact obtained because they were intercepted and the Applicant was charged with an attempt.
The Sentencing Judge accepted, and the Crown did not challenge, that the Applicant was entitled to a 25% discount to reflect his plea of guilty. His Honour also recorded the Applicant’s “frank and forthcoming” police interview and his concessions against interest.
His Honour accepted that the Applicant demonstrated remorse and contrition, although he was “less than wholly forthcoming when cross-examined”.
The Applicant’s submission that the offending was motivated by financial pressure did not have a significant favourable impact on his case. The Sentencing Judge considered that the Applicant had “a significant period of time to consider what he was doing in the lead up to the actual attempted offence”, which was “plenty of time to realise the bad decision he was making”. However, he only stood to receive a “relatively modest gain”. His Honour therefore concluded that “it can certainly be said the motivation for the offending is more in line with need than with greed”.
The Sentencing Judge considered the Applicant’s prospects of rehabilitation were generally good. He had no criminal history. He came from a hard-working but financially disadvantaged family. His likelihood of reoffending was “minimal”.
The Applicant also submitted that the Sentencing Judge ought to consider the probable effect of the sentence on the Applicant’s family and dependants, which did not require that he demonstrate it would cause “exceptional hardship”: Crimes Act s 16A(2)(p); Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75. His Honour determined that although the Applicant was not able to remit large sums to his family prior to the offending, even the absence of that income would be of significance. He weighed this in the Applicant’s favour.
His Honour concluded by imposing sentence on the following basis:
“Taking all of the foregoing matters into account, including of course my assessment of the seriousness of the matter, the conclusion I reach is that prior to the discount for the early plea of guilty, there should be a sentence of 7 years, so that after the 25% discount the head sentence should be 5 years and 9 months. The non parole period will be 3 years, as that is the minimum term needed to reflect the seriousness of the offending, and to appropriately take into account the need for general deterrence. At the same time it allows a reasonably lengthy period on parole, recognising the more onerous nature of custody for the offender given his background, language difficulties and mental health. It also permits a lengthy period of supervision to assist the offender in returning to his earlier pro social lifestyle.”
The law recognises two types of sentencing error that can be dealt with differently by an appellate court.
The first is where there has been some error that vitiates the exercise of the sentencing discretion. In Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (Kentwell) at 617–618 [42], the High Court explained that where a sentencing judge commits an error of the kind described in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505, the discretion has miscarried and the appellate court is bound to re-exercise the sentencing discretion independently.
However, not all errors in the sentencing of offenders vitiate that discretion: Kentwell at 618 [42]. This is the second type of error. In Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 (Lehn) at 216 [72], Bathurst CJ (with whom Beazley P, R A Hulme, Schmidt and Wilson JJ relevantly agreed) observed in this regard that:
“That is not to say that there will not be occasions when, notwithstanding error, it is not necessary to re-exercise the sentencing discretion. It will not be necessary where, for example, an arithmetical error occurred in the calculation of the commencement and end date of the sentence or the date of the expiration of a non-parole period arrived at in the proper exercise of discretion or, for example, an error in the calculation of the effect of a discount for a plea or assistance to the authorities, where the extent of the discount to be allowed was reached in accordance with proper principles.”
(Emphasis added.)
“In the present case, the approach the sentencing judge took meant that the discount for the plea was directly connected to a sentencing purpose in that he declined to grant a further utilitarian discount because the resulting sentence would not reflect the objective seriousness of the offence. … the question of the extent of the discount directly related to a sentencing purpose, namely, ensuring that the penalty reflected the objective gravity of the offence.”
(Emphasis added.)
The learned Chief Justice distinguished the error in question before his Honour from one where there was “a mistake in the calculation of the discount to be granted for the early plea”: at 214 [61]. That latter example is the kind of error that has occurred here.
The Sentencing Judge clearly indicated that “prior to the discount for the early plea of guilty, there should be a sentence of 7 years”, after taking into account all matters including “the seriousness of the matter”. His Honour’s imposition of a head sentence of 5 years and 9 months is a discrete and readily identifiable error. A head sentence of 5 years and 3 months would give effect to his Honour’s expressed intention.
His Honour’s fixing of a 3-year non-parole period was not affected by this error. The length of the non-parole period was selected “as that is the minimum term needed to reflect the seriousness of the offending, and to appropriately take into account the need for general deterrence”. This was an orthodox application of principle in sentencing for Commonwealth offences. Division 4 of Part IB of the Crimes Act makes exhaustive provision for the fixing of non-parole periods for Commonwealth offences; it does not pick up State provisions concerning the fixing of a non-parole period in a ratio referable to the head sentence: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 (Hili) at 528 [22]. There is no “norm” or “starting point” for determining the minimum period in custody an offender must serve for a Commonwealth offence, “whether expressed as a percentage of the head sentence or otherwise”: Hili at 534 [44].
True it is that an additional reason why his Honour fixed a non-parole period of 3 years was that it permitted “a reasonably lengthy period on parole”, namely 2 years and 9 months, which would allow “a lengthy period of supervision to assist the offender in returning to his earlier pro social lifestyle”. A correction of the head sentence alone would reduce that period but would still allow 2 years and 3 months on parole. This period gives effect to his Honour’s intention of fixing a reasonably lengthy period of parole to supervise the Applicant and assist in his rehabilitation. It does not require this Court to resentence the Applicant.
For those reasons, I consider that the miscalculation of the 25% discount is a discrete error that did not vitiate the Sentencing Judge’s discretion. His Honour fixed the non-parole period for a reason independent of the length of the head sentence. There is no basis to interfere with it. Accordingly, this Court can correct the error without re-exercising the sentencing discretion afresh, by substituting a head sentence of 5 years and 3 months for the sentence his Honour imposed.
Once the Crown conceded that error had been established on this ground, it contended that this Court should proceed to resentence the Applicant by re-exercising the discretion. The Applicant did not make any submission as to the approach the Court should adopt. The Crown’s position was expressed without reference to the approach described above. In fairness to the parties, and particularly to the Crown, the point was necessarily considered in an abbreviated fashion, given the late stage at which this proposed ground of appeal was raised without the opportunity to consider the above cases. It may be that with further time to consider the position, a different view might have been taken.
The Court’s determination of an appeal against sentence is governed by s 6(3) of the Criminal Appeal Act, which provides as follows:
On an appeal under section 5 (1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.
That provision “requires a court to form an opinion as to whether some other sentence, whether more or less severe, is warranted in law”: Lehn at 216 [68].
In Christian v R [2021] NSWCCA 300 (Christian), the applicant contended that despite the sentencing judge finding “special circumstances” for the purpose of s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the CSPA), his Honour failed to give effect to that finding when fixing the non-parole period for a State offence: at [27]. The Crown conceded this error and submitted that the Court was consequently required to re-exercise the sentencing discretion afresh. The applicant, however, contended that the Court could proceed to correct the sentence without re-exercising the sentencing discretion. At [36], Beech-Jones CJ at CL (with whom R A Hulme and Dhanji JJ agreed on this point) concluded that the error of the sentencing judge required a “full Kentwell resentencing” because “his Honour did not specify the non-parole period that followed from that finding and hence it is not known what was the adjustment to the ratio between the additional term and the non-parole period”. His Honour went on to observe at [37]:
“In reaching this conclusion I have not overlooked that, in this case, the applicant was content to have this Court only adjust the non-parole period and, in that sense, it could be said that he had confined the scope of his appeal. In Lehn (at [81]), Bathurst CJ noted the concession by counsel for the applicant in Carrol v R [2015] NSWCCA 219 [sic] that it was only necessary to address concurrence and accumulation. However, in this case the Crown did not accept that the Court could so confine itself. In any event, for the reasons just noted, the failure to properly determine the non-parole period affects the whole sentencing exercise and this Court cannot avoid applying s 6(3) of the Criminal Appeal Act even if the parties agree it could.”
“[48] There were references in Lehn v R (Bathurst CJ at [81] and myself at [126]) to two examples of cases in which the Court’s intervention was constrained in the light of concessions made by the parties: Carroll v R [2015] NSWCCA 219 and Haines v R [2016] NSWCCA 90. In the present case, the applicant’s counsel proposed in his supplementary submissions that the intervention of this Court could be confined to the reassessment of the non-parole period. It is most unfortunate that the Crown could not accept that concession and thereby confine the appeal to an uncontroversial, simple and easily rectifiable issue. It is not as if the applicant was seeking a lesser head sentence, let alone the Crown conceding that there should be.
…
[50] Rather than promoting practical and economical appellate rectification of a conceded error, the approach of the Crown only serves to entrench complexity which, in a case such as this, has no tangible benefit.”
“While I am inclined to the view that having regard to its adversarial context, the appeal could have been limited to a consideration of the non-parole period had both parties agreed to this approach, that was not the case. I would, consequently, prefer not to express a concluded view on this issue.”
Although Beech-Jones CJ at CL considered that the agreement of the parties could not avoid the application of s 6(3) of the Criminal Appeal Act in requiring a re-exercise of the sentencing discretion, R A Hulme J disagreed as a matter of principle. His Honour was of the view that if the parties agreed that the matter could be disposed of by limiting the resentencing exercise to the correction of discrete error, then the Court could do so. Without expressing a concluded view, Dhanji J inclined to the latter position.
In concurring remarks in DB v R [2024] NSWCCA 18 at [17], Hamill J observed, after considering these authorities, that the approach of confining the Court’s resentencing to the correction of a discrete error where the nature of that error requires a re-exercise of the sentencing discretion “will only be available where the parties agree to that course”. If there is controversy as to the appropriate course, then a full resentencing must occur. His Honour’s observation accords with that expressed by R A Hulme J in Christian and departs from the view expressed by Beech-Jones CJ at CL that “this Court cannot avoid applying s 6(3) of the Criminal Appeal Act even if the parties agree it could”. However, it must be kept in mind that Christian was a case where a finding of special circumstances was not reflected in the sentence imposed and it was not possible to ascertain the extent to which the sentencing judge intended to vary the statutory ratio. The extent of such variation is a discretionary matter and not something amenable to agreement by the parties.
In JA v R [2024] NSWCCA 130 (JA), the Court was again faced with an error in the fixing of a non-parole period after a finding of special circumstances. The challenge to the sentence imposed by the sentencing judge was not one of manifest excess but merely a challenge to the non-parole period. The parties agreed that the sentencing judge inadvertently increased the proportion of the sentence constituted by the non-parole period, rather than decreasing it. The applicant submitted that the Court could confine its correction of the sentence to the non-parole period, while the Crown contended that a full resentencing was required. However, because the Court determined that it was possible to discern from other remarks made by the sentencing judge what his Honour intended, the appeal was allowed and a correction was made to the non-parole period. Although agreeing with the orders proposed by Basten AJA, N Adams J at [29]–[50] made some observations regarding the requirement to resentence (rather than correct error) when error of the type complained of in JA is established. Her Honour observed at [47] that where the applicant (seeking leave to appeal against sentence) confines the application to a discrete sentencing error and seeks resentencing on that basis alone, rather than a complete re-exercise of the sentencing discretion, it is not apparent why the Court is required to accede to the Crown’s request to resentence the applicant afresh.
Two conclusions may be drawn from the above authorities.
First, the dispute explored in the above cases is the extent to which, with the agreement of the parties (or at least the applicant), an appellate court may confine its resentencing exercise to address an error which, without that agreement, would require a full resentencing because the intention of the sentencing judge cannot be clearly discerned. That is not a settled question: JA at [48]. For the reasons given above at [52]–[55], the error in the present case, being one in which the intentions of the sentencing judge are expressly stated, is in a different category, namely, one which did not vitiate the sentencing discretion, and which does not require an appellate court to proceed to resentence. Because the error here falls into the latter category, this is not the appropriate case to attempt to resolve the uncertainty in relation to the first category. Accordingly, I prefer not to express a view.
Secondly, the scope of the agreement at issue in these cases seeks invariably to confine the exercise of the Court’s resentencing discretion. The position here is the opposite. The error committed by the Sentencing Judge is of a kind that can be corrected without re-exercising the discretion, but the Crown contends that the Court should re-exercise that discretion. In effect, the Crown seeks to broaden the scope of the exercise the Court would otherwise undertake to resolve this ground of appeal.
I do not consider that the Crown’s contention can bind the Court in this way. Whether a sentencing error is of a kind which enlivens a re-exercise of the sentencing discretion is a question of law. The Court is not bound by submissions on propositions of law, still less where those submissions are formed without the benefit of fully developed argument or consideration of the authorities owing to the circumstances of the hearing. Even if one accepts the view expressed in some of the above authorities that the agreement of the parties may enable the Court to confine its resentencing exercise, I do not take those cases to hold that the Court is required to do so. They offer persuasive reasons as to why the Court may do so, such as to enable the “practical and economical appellate rectification of a conceded error”: Christian at [50] (R A Hulme J). But whichever view one takes of those differing approaches, broadening the scope of the appellate court’s intervention would conduce to the opposite effect, namely, to introduce delay and complexity where there is no need to do so.
For those reasons, I consider that the Sentencing Judge’s miscalculation of the discount to the notional head sentence is a discrete and identifiable error which can be corrected without exercising the sentencing discretion afresh. Despite the Crown’s submission that the Court should resentence the Applicant based on this ground, I consider that the Court is not required to do so, nor should it.
This does not dispose of the application. The Court may only correct the arithmetical error in this manner if the sentence was otherwise warranted in law. The Applicant advances five grounds as to why the Sentencing Judge’s discretion miscarried. I did not understand him to abandon those grounds.
Therefore, the Court must proceed to consider the original five grounds of appeal. If error is made out in relation to one or more of them, then the Court will proceed to resentence the Applicant afresh, because the Sentencing Judge’s discretion was vitiated by error. However, if those grounds are not made out, then the Court will allow the appeal and resentence the Applicant by correcting the head sentence alone.
The Applicant contends that the Sentencing Judge erred by not finding that the offence fell towards the lower end of the range of objective seriousness, resulting in a sentence that was too severe.
The Applicant accepts that the offence was serious and that the maximum penalty of 25 years’ imprisonment is properly used as a guidepost. However, he submits that the Sentencing Judge’s assessment of the objective seriousness was erroneous, because the Applicant’s offending “comes close to the lowest category you can get”. This submission is based on a characterisation of the Applicant’s involvement as being limited to picking up the drugs and acting as a courier. That contention gave rise to the following exchange between the Court and the Applicant’s Counsel:
“HUGGETT J: So he’s more than just a mere courier. He was provided money to buy the second phone to track the parcel; that’s additional steps to just being a mere ‘pick up something and carry it from A to B’, and that’s what his Honour took into account. So, his role is higher than merely involvement on one day of moving an item from A to B.
MASTERS: Your Honour, that’s all true. I think if I remember the facts correctly, he was provided $600 to get that second phone. Your Honour, that’s all true. But at the end of the day, the task was simply to get from A to B; the rest was detail.
HUGGETT J: But don’t the authorities say you don’t look at the label; you look at the steps the person took to carry out their role? And the steps your client took included up to two months I think before the pick up; getting the phone, taking steps to track the consignment, as well as what he did on the day.
MASTERS: I’m not gainsaying anything your Honour says there. My submission is simply that at the end of the day if we focussed on what the actual task was, that those other matters did not impact in such a way that elevates it, that’s all I’m saying there, your Honour.”
“Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour.”
The characterisation of the degree of objective seriousness is an evaluative finding which will only be in error if the finding was not “reasonably open” to the sentencing judge: Hancock v R [2025] NSWCCA 213 at [46], [74] (Bell CJ, Ward P, Payne JA, N Adams and Yehia JJ). And such a characterisation on a hypothetical range of seriousness is not obligatory, even more so for offences which do not attract a standard non-parole period: Bektasovski v R [2022] NSWCCA 246; 407 ALR 125 at 129 [11] (Beech-Jones CJ at CL, Kirk JA and Yehia J agreeing); see also DH v R [2022] NSWCCA 200 at [33] (Harrison J), [56] (Fagan J), [60] (Yehia J); Kochai v R [2023] NSWCCA 116 at [51]–[52] (N Adams J, Button and Wilson JJ agreeing).
In Daher v R [2026] NSWCCA 26 at [13]–[14], N Adams CJ at CL (with whom Boulten J agreed) considered that “it remains helpful to place the objective seriousness of an SNPP offence on a putative range” (emphasis added), but that there was no requirement to do so. At [55], Fagan J considered that scalar labels were uncertain in meaning and rarely informative. Whilst there may be some divergent views on the utility of applying these labels to offences which attract a standard non-parole period (which is not at issue here), the cases agree that a sentencing judge must fully identify the facts, matters and circumstances which bear upon the assessment of the gravity of the crimes and the appropriate sentence.
That exercise was undertaken here by the Sentencing Judge. Having evaluated his Honour’s reasons, I am satisfied that the assessment of the objective seriousness of the Applicant’s offending was reasonably open. The Sentencing Judge explained why he did not accept that the offending “comes close to the lowest category you can get”. No error is disclosed by that finding.
Ground 1 is rejected.
The Applicant next submits that “the sentencing judge erred in failing to give sufficient weight to the mitigating circumstances when considering sentence”.
The weight to be given to various pieces of evidence or purposes of sentencing is quintessentially a matter for the sentencing judge. This Court has on many occasions now made it clear that “merely claiming that insufficient weight has been given to a factor is not a proper ground of appeal”: Ahmad v R [2021] NSWCCA 30 at [18] (Leeming JA, Harrison and Adamson JJ); R v White [2025] NSWCCA 111 at [30] (Bell CJ, Payne JA and N Adams J agreeing); Tuhi v R [2025] NSWCCA 115 at [35] (Mitchelmore JA); TH v R [2025] NSWCCA 121 at [72] (Yehia J, Bell CJ and Garling J agreeing); R v Thompson [2025] NSWCCA 133 at [35] (Bell CJ, Huggett and Rigg JJ agreeing); Baldwin v R [2026] NSWCCA 39 at [73] (Muston J, N Adams CJ at CL and Hamill J agreeing).
No more need be said. Ground 2 fails.
The fourth ground of appeal is that “the sentencing judge failed to consider all other available sentences before passing a sentence of imprisonment”.
In the remarks on sentence, his Honour indicated that:
“By section 17A a term of imprisonment shall not be imposed unless the court is satisfied that no other sentence is appropriate in all the circumstances of the case. There is no dispute between the parties that there is no sentence that is appropriate in this case other than a term of imprisonment, perhaps best demonstrated by the voluntary return to custody by the offender on 19 November 2024.”
“HIS HONOUR: … Just before we adjourn let me check one thing. Mr Pearsall, do you argue against the fact that there’ll need to be a non-parole period, which is code for saying the head sentence is more than three years?
PEARSALL: Yes.
HIS HONOUR: Is there any contrary submission to that?
PEARSALL: There’s no contrary submission to the prospect of the head sentence, your Honour.”
The Crown submits that because the Applicant’s Counsel indicated there was “no contrary submission to the prospect of the head sentence”, being the head sentence of more than 3 years that his Honour foreshadowed, the Applicant thereby agreed that no penalty other than imprisonment was appropriate. This is because where a head sentence of longer than 3 years’ imprisonment is imposed, a non-parole period must be fixed unless the Court is otherwise satisfied that it is inappropriate to do so: Crimes Act ss 19AB(1) and (3).
The Crown contends that the Applicant’s concession was understandable, given the observation of Simpson J in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (De La Rosa) at 71 [304]:
“It is equally well established that it would be an extraordinary proposition that a person convicted of an offence of importing prohibited drugs would escape any custodial penalty.”
Against this, the Applicant argues that the Sentencing Judge was not bound by what the parties submitted to his Honour as to the appropriate sentence. He submits that the length of the sentence was a matter solely for his Honour to determine, referring to Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 (Barbaro). On this basis, he says that the Sentencing Judge did not independently consider whether all other available sentences were appropriate before imposing a sentence of imprisonment.
In his written submissions, the Applicant also contends that “[e]ven if no alternative to a full custodial sentence should have been imposed, a sentence of 2 years or less would have sufficed thereby allowing the option of an Intensive Correction Order”. Sections 20AB(1) and (1AA)(a)(ix) of the Crimes Act permit the sentencing court to impose, as a sentencing alternative, an intensive correction order (ICO) as provided by s 7 and Part 5 of the CSPA. Section 68(1) of that Act provides that such an order “must not be made in respect of a single offence if the duration of the term of imprisonment imposed for the offence exceeds 2 years”. This submission was not developed further.
In Vamadevan v R (2024) 116 NSWLR 195; [2024] NSWCCA 223 (Vamadevan) at 211 [57], this Court (Bell CJ, Payne JA, N Adams, Chen and Rigg JJ) explained that:
“… the steps to be undertaken by a sentencing court before an intensive correction order can be imposed on a federal offender under s 20AB(1) of the Crimes Act are as follows:
(1) First, the sentencing court must be satisfied ‘after having considered all other available sentences’ that ‘no other sentence is appropriate in all the circumstances of the case’ other than a sentence of imprisonment: s 17A(1).
(2) Secondly, the sentencing judge must ‘impose a sentence … that is of a severity appropriate in all the circumstances of the offence’: s 16A(1).
(3) Thirdly, if none of the disentitling provisions contained in the NSW Sentencing Act (including the identified provisions of the Crimes Act and the Criminal Code summarised above at [11]) apply, then the sentencing court may consider whether or not to impose an intensive correction order. In doing so, the sentencing judge is obliged to consider the matters in s 16A of the Crimes Act and not s 66 of the NSW Sentencing Act. The sentencing court must, ‘in addition to any other matters’, take into account such of the matters in s 16A(2) ‘as are relevant and known to the court’.”
In response to the Applicant’s submission on this point, the Crown fairly draws attention to YZ v R [2025] NSWCCA 165 (YZ). At sentencing in that case, the applicant’s Counsel implicitly conceded that the s 17A threshold had been crossed but nevertheless argued that alternatives to imprisonment could be imposed, including release on recognisance or an ICO. The sentencing judge ultimately imposed an aggregate sentence which would have allowed for the imposition of an ICO but did not consider alternatives to full-time imprisonment. At [54]–[55], Weinstein J (with whom Wright and Sweeney JJ agreed) determined that the sentencing judge erred by failing to consider alternatives to full-time imprisonment where they were both available and argued.
At [56], his Honour remarked that:
“I should not be taken to suggest that a sentencing judge will be in error unless the three distinct stages are expressly undertaken on every occasion. However, where alternatives to full time custody are both available and argued, it is incumbent on the sentencing judge to consider whether those alternatives are appropriate …”
17A Restriction on imposing sentences
(1) A court shall not pass a sentence of imprisonment on any person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.
(2) Where a court passes a sentence of imprisonment on a person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, the court:
(a) shall state the reasons for its decision that no other sentence is appropriate; and
(b) shall cause those reasons to be entered in the records of the court.
(3) The failure of a court to comply with the provisions of this section does not invalidate any sentence.
(4) This section applies subject to any contrary intention in the law creating the offence.
“It may be observed at the outset that s 17A(2)(a) does not specifically require the sentencing court to isolate such reasons from other considerations which it has taken into account or to compendiously list those factors as distinct from other factors which have moved the court to take the course of imprisoning the offender. In short, s 17A does not require the court to give separate and distinct reasons for concluding that a sentence of imprisonment is the only appropriate response to the offence being considered, if, in the course of discussing factors relevant to the question of sentence generally, the judicial officer indicates those features which he regards as significantly enhancing the criminality of the offence or the culpability of the offender.
…
In my opinion, it would be a rare case in which s 17A will afford a basis for impugning a sentence where it is plain that the sentencing judge or magistrate has taken account of all relevant matters and has justifiably concluded that either a suspended or immediate custodial sentence is required.”
“…in sentencing appeals, the Court is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made.”
(Emphasis added.)
This ground of appeal was inchoate. Although the Applicant complained that the Sentencing Judge did not take into consideration all other available sentences, the alternative sentencing options were not explored in any depth.
First, Counsel for the Applicant at sentencing conceded that a head sentence of more than 3 years was warranted. That concession was well made. It is not open to the Applicant to resile from it now. The Applicant’s submission that it was for the Sentencing Judge alone to determine the sentence is plainly true, but it does not advance his argument. If his reference to Barbaro is intended to suggest that it was inappropriate for the Applicant’s Counsel to make that concession, I disagree. That case stands for the proposition that the prosecution should not be permitted to make a submission to a sentencing judge about the bounds of the available sentencing range. It does not speak to what submissions an offender is permitted to make. In any event, a fair reading of his Honour’s sentencing remarks, in light of the parties’ agreement, indicates that his Honour determined that no sentence other than imprisonment was appropriate.
Secondly, the Applicant contends that a head sentence of only 2 years would have created the option for an ICO to be imposed. This kind of reasoning asks and answers its own question. It does not grapple with the fact that the Sentencing Judge did not impose a head sentence of 2 years. An ICO was not available. The consideration of whether an ICO should be imposed arises only after the sentence has been determined: Vamadevan at [57(3)]. In truth, this argument appears to be a disguised attack on the length of the head sentence because, otherwise, there do not appear to be any other sentencing options. In the absence of available sentencing alternatives, this ground is unsustainable.
I reject Ground 4.
Ground 3 is that “the sentencing judge erred when exercising his discretion in that the sentence is unreasonable or plainly unjust and as a result a substantial wrong has occurred”. Ground 5 argues that “the sentence imposed is manifestly excessive”. These grounds of appeal invite the same analysis, and it is therefore appropriate to consider them together as a single ground.
The Applicant argues that the Sentencing Judge’s selection of 7 years’ imprisonment as a starting point was excessive because it failed to account for any mitigating factors and instead “was for the offence taking the objective facts of the offence alone”. The Court tested this submission on the basis that the Sentencing Judge indicated that his determination of 7 years’ imprisonment (prior to the application of a 25% discount) was reached after “[t]aking all of the foregoing matters into account, including of course my assessment of the seriousness of the matter”. In response, Counsel for the Applicant submitted that a “starting point” does not take into account the subjective case: “A starting point is more an objective exercise on the facts alone and then you take into account the mitigation and everything that can reduce that”. Beyond that argument, I understood the Applicant to contend that in light of the Applicant’s subjective case, and the purported errors in the Sentencing Judge’s characterisation of the objective seriousness, the sentence ultimately imposed was manifestly excessive.
The Crown submits in response that the Sentencing Judge’s judgment was “thorough, comprehensive, engaged with all factors instinctively on sentence and exposed no error”. This submission is informed by three factors:
the objective seriousness of the offence was not low. The Applicant knew that his task was to assist a criminal syndicate to obtain possession of border controlled drugs. The guilty plea was given weight and subjective features were considered;
there was no evidence of, or submissions made about, the application of the principles in De La Rosa or Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, to reduce the Applicant’s moral culpability or the weight to be given to general deterrence; and
the Applicant understood the nature of his wrongdoing even if his motivation was contextualised by financial need.
In response to the Applicant’s contention that the “starting point” adopted by the Sentencing Judge should have accounted for objective factors alone before being reduced in light of the subjective case, the Crown contended that this approach was impermissible following Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39.
“When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].
• Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.
• Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.
• It is not to the point that this Court might have exercised the sentencing discretion differently.
• There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.
• It is for the applicant to establish that the sentence was unreasonable or plainly unjust.”
Sentencing judges must be allowed as much flexibility as is consonant with consistency of approach, and it is necessary for the Applicant to demonstrate that the sentence was not open to the Sentencing Judge: El-Sayed v R [2018] NSWCCA 250 at [41] (R A Hulme J, Basten JA and Hamill J agreeing).
In determining whether a sentence is manifestly excessive or inadequate, an intermediate appellate court must ultimately engage in the same kind of evaluative judgment as the sentencing court at first instance: MT v R [2026] NSWCCA 25 at [152]–[153] (N Adams CJ at CL, Hamill and Emmett JJ agreeing), referring to SB v R [2022] NSWCCA 164 at [55] (Wilson J, Beech-Jones CJ at CL and Garling J agreeing); see also Conte v R [2018] NSWCCA 209; 86 MVR 239 at 242 [9] (Payne JA and Button J).
It is necessary for the Applicant to demonstrate an error of principle that has affected the reasoning or that, because the sentence is unreasonable or plainly unjust, such an error can be inferred. The Applicant appears to contend the former rather than the latter in asserting that the Sentencing Judge commenced with a starting point of 7 years’ imprisonment but failed to consider mitigating factors, with the consequence that the sentence was excessive. Had the Sentencing Judge in fact adopted such a ‘two-tier’ approach, it would have disclosed error: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at 375 [39].
The Sentencing Judge’s approach disclosed no manifest error. His Honour nominated a notional head sentence “[t]aking all of the foregoing matters into account”, which included his Honour’s favourable assessment of the Applicant’s subjective case. He then sought to apply the 25% discount to arrive at the sentence ultimately imposed. Apart from the arithmetical error, this approach was sound.
Considering the findings of fact which his Honour made, I cannot discern a basis to conclude that the sentence imposed for this offence was unreasonable or plainly unjust.
Grounds 3 and 5 fail.
Only Ground 6 is made out. Therefore, the Court is not required to re-exercise the sentencing discretion afresh. The appeal can be determined by correcting the error in the head sentence imposed.
Accordingly, I would:
Grant leave to appeal.
Allow the appeal.
Quash the sentence imposed by Priestley SC DCJ on 15 April 2025 and, in lieu thereof, sentence the Applicant to a term of imprisonment of 5 years and 3 months, commencing on 10 October 2024 and expiring on 9 January 2030, with a non-parole period of 3 years expiring on 9 October 2027.
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Periasamy
R
[2013] HCA 37
[1936] HCA 40
(2014) 253 CLR 58
(2013) 249 CLR 571
(2010) 79 NSWLR 1
(2010) 242 CLR 520
(1936) 55 CLR 499
(2014) 252 CLR 601
(2016) 93 NSWLR 205
(2005) 228 CLR 357
(2011) 244 CLR 120
(2017) 96 NSWLR 155
(2012) 247 CLR 531
(2022) 108 NSWLR 17
(2024) 116 NSWLR 195
(1999) 195 CLR 665
(2000) 202 CLR 321
(2001) 207 CLR 584