Periasamy v R [2026] NSWCCA 89.

The decision in summary.

Periasamy v R [2026] NSWCCA 89 was handed down on 22 June 2026. Stern JA, Huggett J, and Sirtes J sat. The applicant was sentenced in the District Court for an offence against section 11.1 of the Criminal Code Act 1995 (Cth) — attempt — read with section 307.6, which proscribes possession of an unlawfully imported border-controlled drug. The quantity engaged the marketable quantity provisions; heroin at 1.087 kilograms is well above the 2-gram marketable threshold and below the trafficable commercial threshold of 1.5 kilograms.

The Court of Criminal Appeal allowed leave to appeal, allowed the appeal, and resentenced. The error identified at first instance was a matter for the joint reasons. The result is the latest case in the NSWCCA line of authority on Commonwealth drug import sentencing, sitting alongside the Court's analysis in Wong v The Queen (2001) 207 CLR 584 and the series of cases since that have refined the comparative analysis the sentencing judge is required to perform.

This article looks at how the case fits in the existing line, what an attempt to possess offence requires the Crown to prove, the relevance of the controlled delivery, and what the NSWCCA does when it re-exercises the discretion. The reasoning has practical relevance to any person sentenced in NSW for a Commonwealth drug offence.

What does section 307.6 of the Criminal Code (Cth) cover?

Section 307.6 makes it an offence to possess a substance, where the substance is an unlawfully imported border-controlled drug. The fault elements are intention to possess the substance, and either knowledge or recklessness as to the substance being an unlawfully imported border-controlled drug. Three categories of quantity are recognised: marketable quantity, commercial quantity, and "any quantity" (the lower category). The maximum penalty escalates with the quantity.

A marketable quantity attracts a maximum of 25 years' imprisonment. A commercial quantity attracts a maximum of life imprisonment. For heroin, the marketable threshold is 2 grams and the commercial threshold is 1.5 kilograms.

The attempt under section 11.1 picks up the same maximum. An attempt to possess where the substance is not in fact possessed at the time of the police intervention, because the controlled delivery has been intercepted, is the standard charge in a controlled-delivery case. The reason is straightforward: the prosecution will rarely be able to prove possession in the strict sense because the police have substituted the drug or arrived at the point of receipt. The attempt section is the conventional way of charging the same conduct.

Controlled deliveries and the attempt charge.

A controlled delivery is a law-enforcement technique under Part IAB of the Crimes Act 1914 (Cth) where an unlawfully imported substance is allowed to continue to its intended destination under police supervision. The drug is often inert by the time it arrives; it has been substituted. The destination address is then identified, the recipient is observed, and the recipient is intercepted at the point of collection or shortly after.

The recipient is charged with attempt because at no point did they actually possess the drug. They possessed an inert substitute. Possession in law is not satisfied. Attempt under section 11.1 fills the gap. The Crown must prove that the accused intended to possess the substance and that they did acts that were more than merely preparatory.

The case authorities make clear that signing for the parcel, opening the parcel, or moving the parcel into the residence after delivery are all sufficient acts. The defence to attempt sits in the fault element. The accused must have intended to possess the substance, knowing or being reckless that it was an unlawfully imported border-controlled drug.

The Wong v The Queen comparative analysis.

The High Court in Wong v The Queen (2001) 207 CLR 584 set the framework for sentencing Commonwealth drug import matters. The court directed that the sentencing judge identify the relevant range of sentences for the offence as disclosed in comparable cases, place the present case within that range by reference to objective seriousness, and adjust for the subjective factors of the accused.

The NSWCCA has applied Wong repeatedly. The Court has rejected mathematical approaches; it has insisted that comparable cases are a guide and not a tariff; and it has emphasised that role in the criminal enterprise is the most important objective factor at sentence. A courier with no knowledge of the wider operation sits low in the range. A principal who organised the import sits high.

What error did the Court of Criminal Appeal find?

The published reasons explain that error was established. The Court of Criminal Appeal does not re-sentence unless error is shown. The grounds available in a Commonwealth sentence appeal are the same as in a NSW sentence appeal: specific error (an identifiable mistake of fact, law, or principle by the sentencing judge), or manifest excess (the sentence is outside the available range even after the most favourable view is taken of the judge's findings). The applicant in Periasamy succeeded on a specific-error ground. The reasoning is the kind of careful analysis that Kentwell v The Queen [2014] HCA 37 requires the sentencing judge to undertake.

When error is shown the Court of Criminal Appeal then turns to its own discretion under section 6 of the Criminal Appeal Act 1912 (NSW). The Court must form its own view as to the appropriate sentence on the material before it. The Court does not start at the District Court sentence and reduce it. The Court starts again, using the comparable cases, the principles, and the subjective material.

Why this matters for current matters.

Three practical points emerge.

First. The sentencing record matters.

A sentencing judge's reasons that do not engage with the comparable cases, that do not identify the role of the accused in the criminal enterprise, or that do not explain why the sentence sits where it does in the range, are vulnerable on appeal. Periasamy is the latest reminder that the appellate court will look carefully at the reasons.

Second. The role of the courier.

A controlled delivery case is often run against a courier. The role of the courier varies. Some couriers are unwitting; that is rare. Some couriers are recruited at the bottom of the chain and know nothing of the source of the drug or the recipients down the chain. Others know the wider operation. The NSWCCA continues to give weight to the precise role.

Third. The marketable quantity range.

The marketable quantity for heroin sits at 2 grams to 1.5 kilograms. The applicant's 1.087 kilograms sits high in that range. A sentence in the middle to upper end of the comparable cases is expected. The Court's re-exercise will tell practitioners where that landing point is in 2026.

What we do for clients facing a similar charge.

A Commonwealth drug import matter at the marketable level is committed for trial to the District Court of NSW. The work begins at the brief stage. The phone download for the accused, the surveillance log for the controlled delivery, the customs interception record, and the laboratory analysis are the four core documents. Each is tested.

The negotiation with the Commonwealth Director of Public Prosecutions runs in parallel. A guilty plea entered at the earliest opportunity attracts a section 16A discount of up to 25 per cent for utilitarian value. Cooperation under section 21E of the Crimes Act 1914 (Cth) is the other route to a reduced sentence; it is more difficult and more carefully run than a NSW section 23 cooperation. Cooperation requires evidence given against another offender, in a form the Crown can use.

The plea-and-sentence work then turns to the comparable cases. Periasamy joins the line. It will be cited in NSW sentencing submissions for Commonwealth drug import matters for the next 12 to 18 months as the most recent NSWCCA discussion of the discretion at the marketable level.

Frequently asked.

What is a marketable quantity of heroin?

Two grams or more, up to but not including 1.5 kilograms. The threshold is set by the regulations under the Criminal Code Act 1995 (Cth). Periasamy's 1.087 kilograms sits in the upper part of that range.

What is an attempt to possess?

A charge under section 11.1 of the Criminal Code (Cth) where the accused did acts that were more than merely preparatory to possessing the drug, with intent to possess and with knowledge or recklessness as to the drug being unlawfully imported. The standard charge in a controlled-delivery case.

What is the standard non-parole period?

For a Commonwealth drug import offence at the marketable quantity level there is no standard non-parole period. The standard non-parole period regime in Part 4 Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) does not apply to Commonwealth offences. The Court applies section 16A of the Crimes Act 1914 (Cth).

Why was the appeal allowed?

The reasons identify a specific error at first instance. When error is shown, the NSWCCA re-exercises the sentencing discretion under section 6 of the Criminal Appeal Act 1912 (NSW), guided by Kentwell v The Queen [2014] HCA 37.

Does Periasamy lower the sentencing range for Cth drug import?

No single appellate decision lowers a range. Comparable cases together establish the range. Periasamy contributes one further data point. Its weight will depend on the role and the quantity of the applicant and the prosecution case detail.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 25 June 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

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