Background
Aravind Periasamy, a Malaysian citizen resident in Australia since 2018, 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). In October 2022, a DHL parcel from Malaysia containing 1,087.16 grams of heroin concealed within fishing equipment was intercepted by the Australian Border Force at air cargo. Police conducted a controlled delivery, substituting the heroin with an inert substance. Periasamy tracked the parcel, attended the Woolgoolga address with a second man, retrieved the fishing spools from the substituted consignment, and was arrested shortly after. He admitted in a recorded police interview that he knew drugs would be in the parcel, had previously tracked two other parcels for the same syndicate (“dummy runs”), had been provided $600 cash and a dedicated phone for parcel tracking, and was to be paid $3,500 to transport the drugs to Melbourne. His financial motivation included remitting money to his financially struggling family in Malaysia and supporting his then-pregnant girlfriend.
At sentencing in the District Court at Lismore on 15 April 2025, Priestley SC DCJ assessed the offending as falling below the mid-range of objective seriousness — more serious than the lower end, given Periasamy’s pre-offence involvement in tracking packages and his role exceeding that of a mere courier, but mitigated by his low position in the syndicate hierarchy, unsophisticated method, lack of decision-making authority, and probable ignorance of the drug type and quantity. His Honour applied a 25% discount for the early guilty plea to a notional head sentence of 7 years, arriving at a head sentence of 5 years and 9 months with a non-parole period of 3 years. However, 25% of 7 years is 21 months, making the correct head sentence 5 years and 3 months — not 5 years and 9 months. This arithmetic error of 6 months was identified only during oral argument at the Court of Criminal Appeal.
Periasamy sought leave to appeal on five original grounds — challenging the objective seriousness finding, the weight given to mitigating factors, the failure to consider alternatives to imprisonment, manifest excess, and overall unreasonableness — and was granted leave during the hearing to add a sixth ground directed at the arithmetic error. The Crown conceded the sixth ground but submitted the court should conduct a full resentencing by re-exercising the sentencing discretion afresh.
The Court’s Holding
Sirtes J (Stern JA and Huggett J agreeing) dismissed Grounds 1 through 5 and allowed the appeal on Ground 6 alone. On objective seriousness (Ground 1), the court held that the sentencing judge’s characterisation of the offending as “below the mid-range but more serious than has been contended for” was reasonably open on the facts and disclosed no error; a finding about objective seriousness is classically within the sentencing judge’s domain and will only be disturbed if not reasonably open. On Ground 2, the court reaffirmed that a bare complaint about insufficient weight given to a mitigating factor is not a proper ground of appeal — weight is quintessentially a matter for the sentencing judge. On Ground 4, the court held that defence counsel below had conceded that a head sentence exceeding 3 years was warranted, Periasamy could not resile from that concession on appeal, and in any event an Intensive Correction Order is unavailable where the court determines a head sentence above 2 years, so there was no obligation on the sentencing judge to consider it. Grounds 3 and 5 were rejected on the basis that no manifest excess or unreasonableness was demonstrated.
On Ground 6, the court accepted the parties’ agreement that the sentencing judge had miscalculated the 25% discount: 25% of 7 years is 21 months, producing a correct head sentence of 5 years and 3 months, not 5 years and 9 months. The critical question was whether this error required a full resentencing. Drawing on Kentwell v The Queen (2014) 252 CLR 601 and Lehn v R (2016) 93 NSWLR 205, the court distinguished between errors that vitiate the sentencing discretion — requiring independent re-exercise — and discrete arithmetic errors that do not. The 25% discount rate itself was properly determined; only its arithmetic application was wrong. The error was therefore discrete and did not infect the sentencing judge’s exercise of discretion.
The court further held that the 3-year non-parole period was independently justified on its own terms — as the minimum period needed to reflect the seriousness of the offending and general deterrence, fixed without reference to a ratio of the head sentence — and was not affected by the arithmetic error. Correcting the head sentence to 5 years and 3 months still left a parole period of 2 years and 3 months, sufficient to give effect to the sentencing judge’s expressed intention of a reasonably lengthy supervisory parole. Accordingly, the court corrected the head sentence without resentencing afresh, rejecting the Crown’s submission to the contrary as broadening the scope of intervention unnecessarily and introducing delay and complexity where none was required.
Key Takeaways
- A bare complaint that a sentencing judge gave insufficient weight to a mitigating factor is not a proper ground of appeal; weight is a matter exclusively within the sentencing judge’s discretion.
- A discrete arithmetic error in applying an agreed guilty plea discount — where the discount rate itself was properly determined — does not vitiate the sentencing discretion and does not require a full resentencing: the appellate court may simply correct the miscalculation.
- For Commonwealth offences, the non-parole period is independently fixed under Pt IB of the Crimes Act 1914 (Cth) without reference to a prescribed ratio of the head sentence; a corrected head sentence that does not disturb the independently justified non-parole period will not trigger re-exercise of the sentencing discretion.
- A concession by defence counsel at first instance that a head sentence above a particular threshold was warranted cannot be resiled from on appeal, and will foreclose grounds dependent on alternatives available only below that threshold (such as an Intensive Correction Order available only for sentences of 2 years or less).
- An offender’s pre-offence conduct — tracking earlier parcels, operating a dedicated phone, deleting communications — is relevant to the moral culpability attending a possession or attempted possession offence, even where the offender occupied a low position in the trafficking hierarchy.
Why It Matters
This decision provides authoritative guidance on a practically important but under-examined point: what an appellate court must do when a sentencing judge makes a pure arithmetic error, as opposed to an error in principle. Courts regularly apply percentage discounts for guilty pleas, and miscalculations are possible. Periasamy confirms that where the discount rate was properly reached and the error is truly discrete — not connected to any sentencing purpose and not infecting the non-parole period — the appellate court’s power is confined to correction, not substitution of its own sentencing discretion. This limits the scope of Crown appeals to widen the resentencing canvas when only an arithmetic slip is established.
The case also consolidates the emerging line of authority rejecting “insufficient weight” as a self-standing ground of appeal, reinforcing that appellate intervention requires identification of a positive error in principle rather than a disagreement with the sentencing judge’s evaluative balancing. For practitioners advising clients facing Commonwealth drug importation charges, the decision illustrates the narrow circumstances in which concessions made below will bind on appeal, and underscores that the marketable-to-commercial quantity ratio and an offender’s pre-offence facilitation role remain material to objective seriousness assessments even for lower-level participants.