R v Periasamy

The offender was born in December 1993 so he is now 31 years of age. The offence was committed on 25 October 2022 so that the offender was 28 years of age at that time. He was arrested on that day. The offender spent 39 days in custody and was granted bail on 2 December 2022. He returned to custody on 19 November 2024 and has remained there to date, so that the total time in custody is 187 days. The sentence will be backdated by that period so that it will be expressed to commence on 10 October 2024.

There are no matters on a section 16BA schedule to take into account. Being a Commonwealth matter there are no standard non-parole period provisions that apply. The offender was not on conditional liberty at the time of the offence.

On 14 October 2022 a DHL parcel arrived in Australia from Malaysia addressed to an address in Woolgoolga and with a stated telephone number (the consignee phone number). Amongst the fishing equipment in the parcel was 1388.96 g of heroin with a purity of between 77.5 and 79.5% giving a pure weight of 1087.16 g. The consignment was seized by the Australian border force and transferred to New South Wales police.

The consignee phone number was registered to an address in Melbourne, in a name other than the offender. Investigation showed inquiries about the consignment delivery were made from the consignee phone number from the locations of Woolgoolga and Emerald Beach so in the vicinity of the delivery address.

A substitute parcel was delivered by police to the consignee address. A message was sent to the consignee telephone number confirming delivery at about 2 PM on 25 October 2022. About 2:10 PM a white sedan later shown to be registered to the offender attended those premises. In the following approximate 25 minutes the offender and one other (in a second car) attended at the premises. The offender walked up to the front porch of the consignee address and examined the parcel and otherwise dealt with the parcel and its contents, and soon after returned to his vehicle and drove away. The offender was for some of this time seen to be on the phone.

The offender was followed and after a short journey was stopped by police and his vehicle searched. Items found included 4 mobile phones including the one with the consignee telephone number, a mobile phone box and fishing equipment from the controlled delivery. The other person present at the premises, a Mr Peiaru in a separate car was stopped and searched. A small amount of methamphetamine was found but nothing relating to the consignment about which he professed ignorance. There was nothing to link him to the imported heroin.

The consignment address, where the offender had previously resided was also searched and a cardboard box used for the controlled delivery was found. The occupants of that address had no involvement with the consignment.

The offender was interviewed and stated the following:

A friend from Melbourne had asked if they could have a parcel delivered to his address for extra money (it will be noted that the consignee address was not his current address, but was a former address).

He had a feeling something was wrong so called his friend Mr Peiaru who he said had nothing to do with the consignment.

The Melbourne friend told him if he collected the parcel and brought it to Melbourne he would pay him in cash. He was told it would contain drugs, a "little bit only... not much"

This was the first time he collected a consignment but he had assisted in looking up tracking numbers for other packages.

He had previously resided at the consignment address.

Those he speaks with on WeChat ask him to clear the history after they speak.

He was asked to purchase a second phone and was given $600 to do so.

He initially left the consignment location because he had seen police but returned because he was told to. He was asked to video call the Melbourne connection to confirm the contents when opening the consignment.

He was aware the package contained drugs but not the kind of drugs and was unaware of the fishing equipment.

He was to be paid $3500 to collect the consignment and take it to Melbourne.

He was collecting for someone named Elvin who he had met through someone named William at the farm. I note in the offender's affidavit he states the offer to collect the consignment emerged at a bar called the KTV karaoke bar.

After he video called the recipient he was asked to bring the consignment to Melbourne.

That he had called DHL as to the status of the consignment.

He was stressed and needed money because his girlfriend who lives in Melbourne was pregnant.

Investigation showed three similar described consignments delivered to the consignment address in April, August and September 2022.

The consignment phone number phone had been used solely for this consignment.

Another of the phones had data connecting it to 1 of the earlier deliveries.

To be a marketable quantity requires the amount to be 2 grams. The amount here of 1087 g is self-evidently significantly more than the marketable quantity of 2g, and far closer to the commercial quantity of 1500g than the marketable quantity. Quantity is not to be the sole nor even the determinative factor in cases such as this but it is certainly in this case relevant to take it into account.

As to the role of the offender he is more than a mere functionary collecting something from a location as directed. The above facts support the conclusion beyond reasonable doubt that he was involved before this day in preparations for the collection of the border controlled drug. As the Crown points out he tracked the delivery, he deleted messages relating to the activity and had a phone for specific use relating to this activity. I am satisfied there were dummy runs that were carried out; it may have been difficult to find beyond reasonable doubt on the Crown facts that the offender was involved with the dummy runs however, and to the credit of the offender, he admits involvement to a certain degree in his subjective case. On the one hand this shows that he was more involved than simply attending on 25 October and in line with the authority (El Ghourani) referred to below in my view heightens his moral culpability; on the other hand it shows a frankness about the offender at least in this regard for which he should be given credit.

The offender argues in his submissions that he acted on simple instructions and used his own car and brought no expertise or financial investment to the offence. It is accepted he knew it was some drugs but was acting on the understanding it was only a little bit and not much. For the degree of risk involved he was being very modestly rewarded with a promise of $3500, and which I infer was never received.

A point made by the offender in written submissions was the extent to which circumstances leading up to a charge of possession as opposed to a charge of unlawful importation can be taken into account. Reference was made to El Ghourani v R [2009] NSWCCA 140, where Spiegelman CJ at [33] said the act of possession can be attended by a wide range of moral culpability. His Honour noted that the circumstances of how the person came to be in possession of the controlled substance can be relevant to determining the degree of moral culpability attached to the act of possession. With respect that seems to me to clearly allow for the involvement of the offender in the dummy runs and other communications in the lead up to the attempted possession of the controlled substance to be taken into account.

As noted above, I do not consider the offender a simple functionary, or a mere dupe collecting a parcel. He was nevertheless what might be termed an expendable intermediary. Whilst as noted he took part in some of the organising by checking on the delivery, and some involvement in the dummy runs, he had no decision making role. The facts reveal some fairly elementary planning with the obvious knowledge of the incoming package and checking with the transport company but the method of collection was basic and unsophisticated and involved placing the offender at obvious risk of detection. The offender used his own car, and he had an earlier connection to the consignment address. This is consistent with his low status in the hierarchy. At the same time I place little weight favourable to the offender on the fact that he was unaware of just what drug and how much of it he was collecting; it is akin to if not actually wilful ignorance.

It was submitted for the offender that this offending was well toward the lower end of the range of objective seriousness. My view is that the offending is more serious than that. Motivated by receiving a relatively modest sum of money the offender albeit low on the hierarchy of this particular enterprise was involved in a far more than trivial way in the offending. I assess the objective seriousness as being below the mid range but more serious than has been contended for.

The offender relied on a psychological report prepared by Thea Gumbert. A history was taken from the offender and I accept his history to be as set out in the report, subject only to my view set out below concerning his cross examination.

The offender is a Malaysian citizen who has resided in Australia since 2018. He does not have a background of disadvantage but rather had a close positive relationship with his family members and no history of abuse, neglect or other seriously adverse circumstances. He left school at year 11 equivalent and began working full-time. Apparently part of the reason for moving to Australia was to distance himself from the family of a woman with whom he had a relationship; her family members apparently threatened him with beatings on religious grounds.

In 2019 his father's business failed and it fell to him to provide financial support. His family have little financial resources and he sent to them much of the money he made in Australia to the point that it left him short of resources. His father is also sick and is on dialysis and has had a leg amputated. His mother has a heart condition.

He gave no history of mental health conditions prior to the offending but had been experiencing depressive symptoms in the previous eight months. That is from approximately the beginning of 2023 as the assessment occurred on 27 July 2023. The arrest was in October 2022 so it would appear these events have led to his depression. Consistent with that he said he was very worried about his sentencing.

He is overall in good physical health though as already noted there has been some concerns which proved unfounded in that regard.

He denied any history of drug or alcohol abuse. He does not have any criminal history.

The motivation for offending was a need for money as his girlfriend in Melbourne was pregnant and the family's needs in Malaysia.

Incarceration has been difficult due to his limited English and an understandable heightened degree of isolation given his origins.

He expressed remorse and said he was embarrassed and ashamed.

In her opinion the psychologist states the offender meets the criteria for major depressive disorder single episode reactive mainly due to the impact of his arrest and also the concurrent breakdown of his relationship, the loss of the pregnancy, financial stress and lack of support socially in Australia. That said he seemed to have a significant number of supporters in court on some of the occasions this matter has been before the court.

In all what I gained from the report is that what has occurred here is an aberration done in circumstances of financial need. There is no involvement here of any disadvantaged background or substance abuse or mental health issues at the time of the offending.

The offender also relied on an affidavit affirmed by him on 24 March 2024. He confirmed the background in line with what had been set out in the psychologist report. He affirmed that what he had told the psychologist was true. The affidavit contains statements of remorse and regret and shows insight into the damage caused by drugs in the community. Consistent with the history and the psychologist's report he sets out the difficult financial circumstances of his family. He says he is the eldest and there is an expectation that he will care for the family. He refers to the threats he received from his girlfriend's family when in Malaysia due to religious differences. It was in 2018 or 2017 his father went bankrupt placing financial responsibility on him. Annexed to the affidavit are documents evidencing his father's bankruptcy and monies owed by his brother for study, and with him saying monies were also owed by his sister for study. He worked a number of jobs in Malaysia but I infer that was insufficient leading to a move to Australia prompted also by the threat situation. In Australia he got low-paid agricultural work. At home things got worse with increased medical bills for his father. The offender appears to have been either misunderstood or duped in his quest for a working visa. He continued lowly paid agricultural work. Further attempts were made for a visa. With Covid in 2020 he could not return to Malaysia. He was now working in the Coffs Harbour area, still on farms picking fruit for low pay. He was also working at times at Robinvale which appears to be in Victoria.

In March 2021 he met his girlfriend at the time of the offending, in a karaoke bar called KTV. Then in Malaysia his family suffered damage due to flooding so a greater need for him to provide money. In August 2022 his girlfriend became pregnant and he sought to support her so another demand on his finances.

It was in these circumstances of pressing need that whilst at the KTV bar a man suggested he would be paid for receiving a "little bit" of drugs to his home in Coffs Harbour. He was told it would not be a lot and he did not ask how much. He accepted the offer.

He gives evidence of two packages that he was asked to track but not collect which are plainly the dummy runs. On the third occasion he was told to pick it up, which is when he was arrested.

Once his girlfriend found out he had been arrested she ended their relationship and aborted the baby.

He then tells of his time in custody which as noted above was 39 days before being bailed. He speaks appreciatively of the Corrections staff who helped him but says there was a difficulty with the language barrier.

On bail work was difficult to find and his friends were somewhat standoffish though he has met new friends as noted above. The offender is still paying his family's bills so far as he can. His father died on 12 September 2023 and he borrowed money for the funeral arrangements but could not attend due to bail conditions.

The offender gave further evidence in chief orally though it really only emphasised the material in the affidavit.

In cross-examination he did not impress. It was confirmed that he had given his previous residential address to the Melbourne people which I infer was the people from the KTV bar. He said he was not involved until 25 October which cannot be true as that was the date of the offence and he admits to being involved before then. He then says that in August he did not know about it involving drugs. He actually stated in cross examination that it was only on the second time when they asked him to collect that he was told drugs would be involved. In his affidavit the mention of drugs is made on the first occasion they meet at the KTV bar; see at paragraph 45. I take into account that this evidence was given through an interpreter however it is plain that in his oral evidence before the court the offender sought to downplay his involvement in the offending which he had frankly conceded in his affidavit. This tempers to a small extent the weight that might otherwise have been given to his expressions of remorse and acknowledgment of wrongdoing.

Both parties recognise that section 16A of the Crimes Act 1914 (Cth) sets out matters the court "must" take into account so far as they are relevant when passing sentence. The sentence that is imposed must be of a severity appropriate in all the circumstances of the offense. 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.

In his written submissions the offender accepts the significant role played by general deterrence in offences involving imported drugs. Although this was an attempt, so no drugs were added to the community, it is nevertheless conduct like this that sees drugs in the community. Hence the need for weight to be given to deterrence, though to just what extent ultimately depends on all the facts of the matter.

The offender submits that a discount of 25% is appropriate in light of his plea of guilty which was not challenged by the Crown and that will be applied. There is significant utilitarian benefit and the offender has been largely frank and forthcoming from the time of his arrest as reflected by his police interview. He also made concessions against his interest in his affidavit concerning the dummy runs.

I do accept that there is remorse and contrition on behalf of the offender albeit that he has been less than wholly forthcoming when cross-examined as noted above.

The offender places reliance on the fact that this offence was committed whilst under financial pressure. I accept that to be the case but do not consider it has a significant impact in his favour. That is because he had a significant period of time to consider what he was doing in the lead up to the actual attempted offence on 25 October 2022 which was plenty of time to realise the bad decision he was making. Against that is the relatively modest gain that he was achieving. I accept for the offender in the circumstances he found himself that $3500 is a significant amount however it was to be divided as between his girlfriend, and his family, and was only to be received after literally months of involvement. The point is it can certainly be said the motivation for the offending is more in line with need than with greed.

I also accept that there will be a significant impact on him of incarceration above the norm due to his difficulty with the language and the very foreign circumstances in which he will find himself. There is also the likelihood of ongoing depression.

As to his prospects of rehabilitation but for one reservation they must be considered good. He is now 31 years old and prior to these events had not shown any inclination to engage in criminal activity. His background is of hard-working but financially disadvantaged people. He has sought to work as best he can whilst in Australia but due to his lack of qualifications and language skills has only been able to find very poorly paid work. Nevertheless he did undertake that work. This experience would surely have significant prospects of deterring him from acting in this way again. I consider his likelihood of reoffending to be minimal.

As noted at the beginning of these reasons it has taken a long time to resolve or conclude due to requests of the offender to investigate his state of health. Given the delay between the hearing date and this sentence the court made a request of the parties to indicate what if any submission they wish to make in regards to that aspect of health. The response received from the offender was to the effect that nothing was sought to be submitted in that regard.

The offender also sought to rely on the case of Totaan [2022] NSWCCA 7. That case is authority for the proposition that the effect of section 16A(2)(p) is that in determining sentence account may be taken of the probable effect the sentence may have on the offender's family or dependents without that effect needing to result in exceptional hardship. The sad reality is that he was not able prior to the offending to remit much to his family due to the low level of income he was receiving and indeed on his case that is part of the reason why he engaged in the offending conduct. Nevertheless even if the amounts were modest such as the $500 per month he suggests in his affidavit that would be something of significance for his family. It is a matter that I do take into account favourably to the offender.

In the submissions filed on behalf of the Crown submissions were made by reference to the various subsections of section 16A(2). The submissions just recounted of the offender can also be seen to be taken from those subsections.

The Crown accepts the offender's expressions of remorse and notes his cooperation with police. The Crown submits that less weight should be given in offences of this type to the offender's good character. There was no express submission by the offender seeking to rely on his good character though there was reliance on the absence of a criminal history, and it was submitted, and I accept, that there is no suggestion of the offender using his standing in the community to assist him in the offending. In my view the favorable background of the offender and lack of offending can relevantly be taken into account on the facts of this case and are matters which permit a favourable assessment to the offender of a low risk of reoffending.

As to matters of health there are really no physical concerns but only the issue of his mental health. I accept the Crown submission that his mental health does not lessen his moral culpability as it seems to have arisen after his arrest. As already noted it is a matter taken into account by recognising it will likely make custody more onerous for him.

The Crown accepts that the incarceration of the offender will have an adverse effect on his family.

Overall the subjective case for the offender is quite a favourable one. I accept that this offending is an aberration and that he is unlikely to reoffend.

To avoid any doubt, I note the offender properly made no reference to any issue of immigration or visa status beyond the factual background of the offender, and the Crown expressly stated, and I accept, that such matters are irrelevant in determining the appropriate sentence.

The Crown provided some helpful comparative decisions. Caution is needed in considering so-called comparables given that the facts will always be different. The parties seem to agree that the cases of Dang & Tran [2015] NSWCCA 163 (notably the sentence was following a guilty verdict), OPQ [2012] VSCA 115, and Todorovski [2010] NSWCCA 75 are helpfully similar in various respects.

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 offender is convicted of one charge under sections 11.1(1) and 307.6(1) of the Commonwealth Criminal Code.

The offender is sentenced to a term of imprisonment to date from 10 October 2024 with a non parole period of 3 years expiring on 9 October 2027 and with a balance of term of 2 years and 9 months expiring on 9 July 2030.

The offender will first be eligible for parole on 9 October 2027.