Sayyaketh v R (Cth)

1. [1]

   STERN JA: I agree with Dhanji J.

2. [2]

   DHANJI J: The applicant, Paphatsone Sayyaketh, seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the sentence imposed on her in the District Court of New South Wales at Sydney on 15 September 2025 by his Honour Judge Neilson.

3. [3]

   The applicant was charged with one count of aid, abet, counsel or procure the commission of an attempt to possess a commercial quantity of an unlawfully imported border-controlled drug, namely heroin, contrary to ss 11.2(1), 11.1(1) and 307.5(1) of the Criminal Code (Cth). She initially pleaded not guilty and was committed for trial. The applicant entered a plea of guilty on 23 June 2025, the date on which the trial was set to commence.

4. [4]

   Following the application of a 10 percent discount for the utilitarian value of her plea of guilty, the applicant was sentenced to 3 years imprisonment. The sentence was to be served by way of 2 years of full-time custody after which she was to be released subject to her entering recognizance requiring her to give of security in the sum of $1,000, and to comply with the following conditions:

5. [5]

   The maximum penalty applicable to an offence against s 307.5 of the Criminal Code is life imprisonment and/or 7,500 penalty units. At the relevant time s 4AA of the Crimes Act 1914 (Cth) set a penalty unit at $275 (which equates to a maximum fine of $2,062,500). Pursuant to ss 11.1(1) and 11.2(1) the applicant was taken to have committed the offence against s 307.5 of the Criminal Code and was punishable accordingly.

6. [6]

   The sole ground of appeal on which the applicant ultimately sought to rely was as follows:

7. [7]

   For the reasons set out below, I would grant leave to appeal and allow the appeal.

Agreed Facts

1. [8]

   A statement of agreed facts was tendered during the sentence proceedings. Those facts were summarised by the sentencing judge at [3]-[20]:

2. [9]

   The sentencing judge noted that there was no evidence that the offender profited from her involvement in the attempted importation, nor did the Crown contend that she was aware of either the nature or precise quantity of the drug, making her reckless as the fact it could have been a border-controlled drug.

Proceedings on Sentence

1. [10]

   The proceedings on sentence took place on 12 September 2025. The Crown tendered a bundle comprising, amongst other things, the statement of agreed facts, the applicant’s custodial history, a sentencing assessment report dated 31 July 2025, and the agreed facts and sentencing remarks in relation to her co-offender, Mr Tonh Vongphachanh. Tendered on behalf of the applicant was a sentence bundle including a report of consultant psychologist, Mr Anthony Diment, a copy of the applicant’s criminal history from Lao People’s Democratic Republic, a medical certification and a letter from the Village Chief of Donnoun Village, both in relation to an injury suffered by the applicant’s mother, and a character reference letter from the applicant’s co-worker, Mr Stephen Vincent. The applicant also tendered a letter of attendance confirming two appointments with a psychologist and a Health Summary Sheet including a mental health care plan from the applicant’s general practitioner.

2. [11]

   Mr Diment was called by the applicant to give evidence during the sentence proceedings and was cross-examined.

3. [12]

   Both parties provided written submissions and made oral submissions to the Court. The applicant’s counsel at sentence conceded that there was no alternative to a sentence of imprisonment and the threshold established by s 17A of the Crimes Act had therefore been crossed. While making this concession the applicant submitted that a recognizance release order would be appropriate given the unique sentencing factors of the case. The Crown submitted that the only appropriate sentence was of a term of imprisonment with a non-parole period,

Sentencing

1. [13]

   Having set out the facts, the sentencing judge noted the prior good character of the applicant, she having no criminal record in either Australia or Laos.

2. [14]

   The sentencing judge had regard to the report of Mr Diment, which canvassed the applicant’s personal circumstances. The applicant was born in Laos, where her mother and two children currently reside.

3. [15]

   While Mr Diment was of the opinion the applicant may have been suffering from post-traumatic stress disorder as a result of events in her younger years, the recent diagnosis and the absence of any prior treatment led his Honour to reject the contention that, to the extent the applicant suffered such a condition, it had anything to do with her offending or in any way lessened her criminality.

4. [16]

   The sentencing judge accepted that it was true “[t]o an extent” that the applicant’s role was not vital, and that “almost anybody who imports things” could have performed that role, but that nonetheless “somebody had to do it who had an ability to use Australia Post tracking information”. His Honour also accepted that there was no evidence the applicant stood to gain anything by her involvement. His Honour gave weight to the Crown’s submission that there was a need for any penalty in relation to offences of this nature to reflect both general and specific deterrence.

5. [17]

   The sentencing judge referred to the evidence that the applicant had found her experience of prison, prior to her release to bail, “daunting”. His Honour did not, however, accept that imprisonment would be more onerous for the applicant because of her background. In this regard his Honour said the reference written by a work colleague of the applicant “speaks of a lady who can get on successfully with those with whom she works and does not suggest that the offender would be greatly impeded by being imprisoned”.

6. [18]

   The sentencing judge began the sentencing exercise with a head sentence of 40 months imprisonment, which was reduced to 36 months as a result of the application of the 10 per cent discount on account of the utilitarian value of applicant’s plea of guilty. As noted above his Honour ordered the applicant to be released on recognizance after 2 years. His Honour backdated the commencement date to account for the 27 days the applicant had spent in custody prior to being granted bail.

7. [19]

   His Honour then observed that, in arriving at the above, he had given consideration to each of the matters in s 16A(2) of the Crimes Act as required when passing sentence for a Commonwealth offence. Among these considerations, his Honour noted that he was confident that, given the penalty he intended to impose, the applicant would not offend again. His Honour also considered the probable effect of any sentence on the applicant’s family and dependants and was satisfied that the children’s father would be able to support the children during the applicant’s time in custody.

Ground 1 - the sentencing judge erred by failing to consider alternatives to full-time custody.

1. [20]

   Ultimately this was the sole ground pressed on the appeal. The respondent conceded that the sentencing judge erred in the manner complained of. In the light of the respondent’s concession, my reasons for upholding this ground will be brief.

2. [21]

   The applicant spent 27 days in pre-sentence custody following her arrest on 31 May 2023 before obtaining bail. She was consequently on bail at the time of the proceedings on sentence. Importantly, in the context of this ground, her counsel, while conceding that the threshold provided by s 17A of the Crimes Act had been crossed and a sentence of imprisonment must be imposed, contended that the applicant should not be returned to custody. It was submitted that an appropriate disposition of the matter was the imposition of a sentence of imprisonment of three years or less, together with a recognizance release order to take effect immediately. The submission was made both in writing and orally. It was, in effect, at the centre of the applicant’s case on sentence. The applicant contends that, as a result, his Honour was required to deal with the submission but that he did not do so. The critical part of his Honour’s reasons is set out below, where his Honour, having discussed the various matters relevant to sentence in this particular case (in a manner which is not the subject of complaint), in determining the sentence said at [39]-[40]:

3. [22]

   The applicant submits that the above reflects a failure to consider releasing the applicant immediately, which in practical terms was an alternative to full-time imprisonment. She submits this was in error and relied on the decision of this Court in YZ v R [2025] NSWCCA 165 (“YZ”).

4. [23]

   In YZ the Court considered an almost identical complaint. Weinstein J (with whom Wright and Sweeney JJ agreed), having referred to Stanley v Director of Public Prosecutions (NSW) (2023) 278 CLR 1; [2023] HCA 3, Vamadevan v R (2024) 116 NSWLR 195; [2024] NSWCCA 223, Paul Campbell v R [2018] NSWCCA 87 and Larkin v The Queen [2012] WASCA 238, identified three steps to be undertaken when sentencing a federal offender to imprisonment. Those steps are, first, to determine whether the threshold in s 17A of the Crimes Act has been crossed, second, to determine the appropriate term of imprisonment, and third, where jurisdictionally available, to consider whether an alternative to full-time imprisonment could be imposed.

5. [24]

   Explicit consideration of the third step referred to above is not required in every case. However, Weinstein J said, at [54]:

6. [25]

   As noted above, in the present case, the applicant sought an order for her immediate release. Such an order is available pursuant to s 20(1)(b)(i) of the Crimes Act which, as presently relevant (and including the heading), provides:

7. [26]

   The reference to “calculated” in accordance with s 19AF(1) is somewhat misleading in that that sub-section simply requires that, in the case of a sentence which includes a recognizance release order, that order must take effect prior to the expiry of the sentence or the last to be served of consecutive sentences (“the pre‑release period” must be set so it ends “not later than the end of the sentence”).

8. [27]

   Orders under s 20(1)(b) are (or at least were) commonly referred to as “suspended sentences” where release was immediate, or “partially suspended sentences” where release was ordered after a period of full-time imprisonment. For present purposes, what is important is that, whether described in terms of a suspended sentence or otherwise, as noted above, as the applicant submitted, the practical effect of what was sought was an alternative to full-time imprisonment. That being the case it was incumbent on the sentencing judge, in accordance with YZ, to consider that alternative. The question is whether his Honour did so.

9. [28]

   The respondent submitted that having determined that a term of imprisonment should be imposed, and having determined its length, framing the remaining question as “‘how much of that sentence should be served by way of full-time custody’ … elides the necessary antecedent inquiry”, which was whether any full-time custody was required at all. Alternatively, as put by the applicant, “[r]ather than asking how much, his Honour ought to have asked whether the sentence of three years should have required the applicant to return to full-time custody at all”.

10. [29]

    It can be accepted that, on setting the term, his Honour immediately turned to the question of “how much” of the sentence should be served by way of full-time imprisonment. Asking “how much?” could, of course, have been answered “none at all”. However, his Honour’s immediate reference to the ordinary ratio applying to State matters strongly suggests that the answer was limited to one that included some period of full-time custody.

11. [30]

    I confess some reservations in accepting a concession that his Honour “erred by failing to consider alternatives to full-time custody” in circumstances where his Honour was plainly aware of the submissions that had been made on behalf of the applicant. It may be that the complaint could have been more properly articulated in terms of a failure to provide adequate reasons. Nonetheless, immediately asking how much of that time should be by way of full-time custody failed to elucidate any consideration of the applicant’s submission that she should be released immediately. However it is put, I am persuaded the respondent’s concession as to error should be accepted.

12. [31]

    I also have a related reservation with respect to the Crown’s concession that any error was material. I say “related” as the materiality of the error is, in the circumstances of this case, dependant on an alternative to full-time custody having been open. While reasons should have been given addressing a submission which was the focus of the applicant’s case, the absence of such reasons is more readily explicable if such a result was simply not open. Nonetheless, the respondent having conceded the error was material, and the Court not having heard full argument on the matter, this concession should also be accepted. In coming to this view, I would accept the possibility the formulation of reasons rejecting the applicant’s submissions as to the availability of an alternative to full-time imprisonment may have impacted the length of that full-time imprisonment.

13. [32]

    Error having been established it is necessary to exercise the sentencing discretion afresh: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [43].

Resentence

1. [33]

   Error having been established, this Court is required to reconsider the issue raised in the ground of appeal, that is, whether an order should be made entitling the applicant to immediate release. The findings of the sentencing judge should otherwise be accepted other than where specifically challenged: DL v The Queen (2018) 265 CLR 215 at 224; [2018] HCA 32. In this latter regard the respondent noted that the sentencing judge did not take into account hardship to third parties or make any finding that the applicant’s imprisonment would be more onerous than is ordinarily the case and submitted (consistent with the position taken by the respondent at first instance) that it would be open to this Court to do so. Unsurprisingly the applicant embraced this position.

2. [34]

   In addition to the evidence before the sentencing judge, further evidence was tendered on the appeal for the purposes of resentence. That evidence is in the form of an affidavit of the applicant’s solicitor of 31 March 2026 annexing case notes produced by Corrective Services in relation to the applicant. Those records generally show the applicant to have been cooperative whilst in custody, while seeking to contribute positively through working and to better herself by accessing appropriate services. Beyond this, reference will be made to specific matters in the notes in the context of the issues discussed below.

3. [35]

   The present case was, by reason of both the objective circumstances of the case and the subjective circumstances of the offender, of course, a case some considerable distance from one where the maximum sentence might be imposed (see The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48). With respect to the objective circumstances of the case, I would accept the offending to be relatively unsophisticated. The importation itself (with which the applicant was not charged and for which she is not to be punished) involved the sending of a package by post containing heroin to Mr Vongphachanh’s father’s address. It did not involve, as is commonly seen, dummy runs, establishing an apparently legitimate importing enterprise, or hiding drugs in the cargo of a legitimate business that regularly imports cargo. The sophistication of the applicant’s offending was commensurate with the simplicity of the importation. It involved communicating with Mr Vongphachanh, tracking the package through her enquiries with Australia post and, additionally, providing some coordination between the person who appears to have been the principal of the importation, Ms Phommixay, and Mr Vongphachanh over a period of a little over a week. While the applicant’s role was neither sophisticated nor substantial, it could not be described as trivial.

4. [36]

   I accept the applicant should be sentenced on the basis that she did not know the precise type or quantity of the border-controlled drug in the consignment. Nonetheless, she participated in the enterprise knowing that there was a substantial risk that the consignment contained an unlawfully imported border- controlled drug and, having regard to the circumstances known to her, it was unjustifiable to take the risk: Criminal Code, s 5.4

5. [37]

   While there was no direct evidence that the applicant stood to profit, and no finding by the sentencing judge that she did, that is not the same thing as a finding that she did not stand to profit. Ultimately the applicant’s precise involvement and what she stood to gain is uncertain. This, in part, relates to the absence of any coherent explanation from the applicant, who in the versions provided to the authors of the sentencing assessment report and the psychological report denied, or at least minimised, her wrongdoing. Her explanation that she was doing a favour for a friend was far from a compelling explanation for her involvement in a serious crime.

6. [38]

   I am of the view, as was accepted by the applicant, that having regard to the seriousness of the matter there is no alternative to a sentence of imprisonment. I would adopt the same sentence of 3 years as was imposed by the sentencing judge, arrived at from a starting point of 40 months and reduced by 10 percent on account of the utilitarian value of the applicant’s plea of guilty. That starting point, in my view, appropriately reflects the seriousness of the matter, the applicant’s subjective circumstances and the purposes of sentencing. A discount of 10 percent is appropriate given the plea was entered on the day of trial. The real issue on the appeal is when any recognizance release order should take effect.

7. [39]

   The applicant maintained her position that any such sentence could be properly tempered by an order for the applicant’s immediate release. The submission was less ambitious than that made at first instance, simply on the basis that the applicant has now served in excess of seven months in full-time custody. Nonetheless, I am unable to accede to the submission. The applicant was an accessory to the principal’s attempt to obtain a commercial quantity of heroin. Whilst the quantity, by reference to the commercial quantity which, with respect to heroin, is 1.5 kg, was at the lower end of the scale, it is at the commercial quantity that the maximum sentence of life imprisonment becomes applicable. That maximum penalty reflects the seriousness with which the legislature views such offences.

8. [40]

   Having regard to various purposes of sentencing, the matters referred to in s 16A(2) of the Crimes Act discussed above, I am of the view that there must be a term of imprisonment beyond that which has been served to date.

9. [41]

   Of particular significance in determining the pre-release period is the onerousness of the applicant’s custody. That is largely informed by what I accept would be the difficulty of being in custody while separated from her children who were aged just 11 and 14 at the time of sentence.

10. [42]

    There is evidence that the applicant maintains an interest in the children, including by providing financial support. In the case notes produced by Corrective Services it was reported that on 22 September 2025 the applicant told a staff member that her previous “daily communication with her mum has reduced since her incarceration”. In entries on 3 December 2025 and 29 January 2026 the applicant reported missing her children. While the children were not living with the applicant prior to her incarceration, having remained in Laos with the applicant’s mother, I accept that regular contact was maintained. Whilst not stated, it is likely that the previous daily communication with her mother also included communication with the children, given they were living with the applicant’s mother. In the current age this was likely to be substantial electronic contact including by way of video calls. It was accepted at the hearing of the appeal that some contact is possible whilst the applicant is in gaol but it was submitted that such contact is necessarily restricted. There was no evidence as to the current regularity of contact and what form it takes. It is regrettable that counsel did not, prior to the appeal, take steps to address this paucity of evidence with respect to such an obvious and significant part of the applicant’s case. Despite this failing, I would infer that the experience of imprisonment for a mother separated from the children who reside in a different country would be significantly more burdensome than is ordinarily the case. I would also accept that the applicant’s incarceration and consequent inability to return immediately to Laos to assist her children should the need arise would add to her sense of distance from them, contributing to the anguish of her incarceration.

11. [43]

    The applicant, in the case notes, also reported a concern that her children and mother had no financial support as a result of her incarceration. While I accept that there is hardship to the applicant’s mother and her children as a result of the loss of the applicant’s wage, I would not attribute significant weight to this, largely due to the absence of evidence as to the capacity of the children’s father, who, on the evidence was in employment in Australia, to provide support.

12. [44]

    In all the circumstances, and giving particular weight to the burdensomeness of the applicant’s imprisonment, I would order that the recognizance release order take effect after the applicant has served 18 months of the sentence. I propose the following orders:

    1. (1)

       Leave to appeal granted.

    2. (2)

       Appeal allowed.

    3. (3)

       Quash the sentence imposed in the District Court on 15 September 2025 and in lieu sentence the applicant as follows to a term of imprisonment of 3 years commencing on 19 August 2025.

    4. (4)

       Order, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), that the applicant be released on her own recognizance on 18 February 2027, upon her giving security in the sum of $1,000 on the condition that she be of good behaviour and appear before the court if called upon for a period of 18 months expiring on 18 August 2028.

13. [45]

    R A HULME AJ: I agree with Dhanji J.