Billinghurst v Tasmania - [2018] TASCCA 16

[2018] TASCCA 16

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Billinghurst v Tasmania [2018] TASCCA 16

PARTIES: BILLINGHURST, Garry Maxwell
v

STATE OF TASMANIA
LEAMAN, Christopher Adam
v
STATE OF TASMANIA

FILE NOS: CCA 3626/2017

CCA 3673/2017

DELIVERED ON:  10 October 2018
DELIVERED AT:  Hobart
HEARING DATE:  20 August 2018
JUDGMENT OF:  Blow CJ, Pearce J and Marshall AJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Trafficking in controlled substances – Major interstate commercial business of trafficking in methylamphetamine and other drugs – Sentence of 9 years' imprisonment with non-parole period of 6 years for one of the men in charge – Sentence of 5 years' imprisonment with non-parole period of 2½ years for "junior partner".

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:

Appellant Billinghurst:                  J Crotty
             Appellant Leaman: K Baumeler
             Respondent:  A Shand, A Norton

Solicitors:

Appellants: Crotty Legal
Respondent: Director of Public Prosecutions

Judgment Number: [2018] TASCCA 16
Number of paragraphs: 59

Serial No 16/2018
File Nos CCA 3626/2017
CCA 3673/2017

GARRY MAXWELL BILLINGHURST v STATE OF TASMANIA
CHRISTOPHER ADAM LEAMAN v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
PEARCE J
MARSHALL AJ
10 October 2018

Order of the Court

Appeals dismissed.

Serial No 16/2018
File Nos CCA 3626/2017
CCA 3673/2017

GARRY MAXWELL BILLINGHURST v STATE OF TASMANIA
CHRISTOPHER ADAM LEAMAN v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
10 October 2018

There are two sentencing appeals before the Court. The appellants, Garry Billinghurst and Christopher Leaman, were jointly charged with a third man, Adam Jones, with trafficking in controlled substances. The three men were tried together before Estcourt J on a single charge, and all found guilty. They were sentenced on the basis that they had trafficked in methylamphetamine, amphetamine, oxycodone, morphine and cannabis. The learned trial judge sentenced Mr Billinghurst and Mr Jones to 9 years' imprisonment, with a non-parole period of 6 years for each of them. He sentenced Mr Leaman to 5 years' imprisonment, with a non-parole period of 2½ years. Mr Jones has not appealed.
Both appellants contend that their sentences were manifestly excessive. Mr Billinghurst also contends that the learned trial judge erred in "failing to state reasons" for imposing a 6-year non-parole period. Mr Leaman contends that the learned trial judge erred in refusing an application at the end of the trial for an adjournment to obtain medical reports.
The indictment alleged that the three accused trafficked in the various drugs at various places in Tasmania between about 1 July 2012 and 4 September 2013, a period of just over 14 months. The Crown contended at the trial that they were engaged over that period in a continuous and systematic commercial business of trafficking in drugs, relying on R v Giretti (1986) 24 A Crim R 112. The learned trial judge was satisfied beyond reasonable doubt that the three offenders had trafficked in the drugs that I have mentioned, but not in a number of other drugs that were mentioned in the indictment.
In his sentencing comments, his Honour described the roles of the three men as follows:
"Mr Billinghurst, who resided chiefly in Victoria during the relevant period, was clearly in charge of sourcing prescription medication and amphetamine and methylamphetamine, and arranging for it to be imported into Tasmania. However, Mr Jones was a senior partner in the business deferring only to Mr Billinghurst on occasions and running the Tasmanian end of the operation, storing drugs on his bush property at Mt Lloyd and stocking and manning what was clearly a drug shop, known as the Shed at Albert Road in Moonah. Mr Leaman, on the other hand, was a junior partner being involved in assisting in importing the drugs hidden in motor vehicles brought across on the Bass Strait ferry, and in transporting drugs and selling them in Tasmania and ferrying drugs from their storage place at Mt Lloyd to the Shed and, to a lesser extent, to and from his own address at Granton where he lived in a caravan. He does not appear to have benefited from the business to anywhere near the extent of Mr Billinghurst and Mr Jones, based on his bank records, his lifestyle and his apparent possessions."
His Honour was unable to make precise findings as to the scale of the trafficking operation. He sentenced on the basis that certain facts indicating the size of the operation were established by the evidence, as follows:
·     On 4 September 2013, at the conclusion of a large covert operation, police officers conducted simultaneous searches of the defendants' properties and seized drugs which his Honour calculated to have a street value of "up to $500,000". (It seems clear, despite the use of slightly loose language, that his Honour was satisfied beyond reasonable doubt that the seized drugs had a street value approaching $500,000. Counsel for the appellants did not argue that that interpretation was inappropriate or that such a finding was unjustified.)
·     Six ounces of methylamphetamine were seized from a courier who was importing the drug from Victoria for the defendants in July 2013.
·     That courier also brought two packages of methylamphetamine into Tasmania in June 2013, but they were not seized.
·     The defendants paid two other people $5,000 per trip to import drugs into Tasmania on the Spirit of Tasmania on five occasions.
·     Mr Leaman brought drugs into Tasmania on that vessel on an unknown number of other occasions.
·     His Honour inferred that the quantities of methylamphetamine brought into Tasmania by ship were "substantial and not insignificant".
·     During 27 days in 2013, when a police surveillance camera was in place, 340 visitors made brief visits to "the Shed", always leaving after a short time and not carrying anything visible.
·     One customer gave evidence that he went to "the Shed" because it was understood by him from others that it sold the best Ice in town.
·     There were wholesale sales of methylamphetamine and cannabis to at least one other individual.
At the hearing of the appeal, the Court was provided by counsel with a document that set out a number of agreed facts relating to the factual basis of the sentencing of the appellants. The information in that document included the following:
·     Video surveillance footage of people visiting the Shed over a period of two days was played at the trial. Those days were representative of usual activity. There were 24 visitors on one day and 14 on the other. Their visits were consistent with the sale of drugs. Each of the three accused was clearly depicted in the footage. When a visitor arrived, one of them was often seen to move out of sight to the left hand side of the Shed. Shortly afterwards, that person would return into view and the visitor would leave. On at least one occasion Mr Billinghurst was filmed handing something to a visitor.
·     During the period covered by the indictment all three accused were unemployed and had no source of legitimate income other than Centrelink benefits. There was evidence from Centrelink that each accused received between $19,000 and $20,000 per annum in benefits.
·     During the period of the indictment the three accused had a total of 64 vehicles registered in their names. During that period over $27,000 was paid by them in registration fees, including over $18,000 paid by Mr Billinghurst and over $3,000 paid by Mr Leaman.
·     Mr Billinghurst's bank statements in relation to four accounts in his name showed that, during the period of the indictment, $178,451 was credited to those accounts and $204,257 was withdrawn. Mr Billinghurst's Centrelink payments did not go into any of those accounts.
The learned sentencing judge took into account the consequences of drug use and drug addiction. He said the following about amphetamine and methylamphetamine:
"Amphetamine and methylamphetamine are highly addictive substances that can cause significant harm to users and the general community. They can be swallowed, injected, smoked or sniffed. The stimulant effects can last anywhere from seven to 24 hours, and the effects include euphoria, a sense of wellbeing, confidence and heightened awareness. There are a number of acute and chronic harms associated with the use of amphetamine and methylamphetamine, including dehydration, weight loss, skin problems, teeth problems, sleep disorders, cardiac problems, cognitive disturbance and mental health problems."
His Honour went on to adopt the following comments made by Porter J when passing sentence in Tasmania v Stebbins on 16 March 2015:
"It is perhaps well-known, but it needs to be restated that amphetamine use in the community is extremely costly in human or personal terms, and in economic terms. The drug causes much disruption in the community. Addiction is a health issue. Addiction leads to the commission of crime for funding. Use of the drug is often responsible for violence, some of which is dealt with by the courts, some of which is unseen and undetected. Police and emergency service resources are often involved in dealing with the consequences of its use and abuse."
His Honour made the following comments about cannabis and prescription drugs:
"The evils of cannabis are not to be underestimated either as Wood J observed in Sweetman v Tasmania [2016] TASCCA 5 at [13]-[14], in the past, some people have regarded cannabis as a 'soft drug' and have not seen it as particularly harmful or potentially dangerous to the user. However, it is now well-known that cannabis has a range of destructive effects on the physical and mental health of users. Previously held views or assumptions about cannabis are completely at odds with well-established empirical evidence and knowledge about the adverse effects of cannabis and its association with short term and long term harm.
The dangers of opioid abuse in the form of illegally used prescription drugs are also well known."
By virtue of s 12 of the Misuse of Drugs Act 2001, trafficking in a controlled substance is a crime that is punishable by imprisonment for a term of up to 21 years. Obviously Parliament intended that individuals who controlled trafficking operations like the operation of these two appellants were to receive heavy sentences.
The trafficking business was well organised, with different individuals performing different roles. It was both a wholesale and a retail business. It had dedicated premises for retail sales. Mr Billinghurst kept a residence in Melbourne in order to buy drugs there. Multiple suppliers were involved. Other individuals were involved, including couriers. The appellants continued offending when couriers were intercepted and arrested. They were preying on the addictions of others, and must have known how harmful the drugs that they were selling could be.
Mr Billinghurst was not a drug user. The fact that he trafficked in drugs purely for commercial reasons, rather than for the purposes of funding drugs that he was addicted to, is an aggravating factor for sentencing purposes. Mr Leaman was a user of cannabis, but not of the other drugs to which his sentence relates. It is clear that he must have been involved in this enterprise mainly, if not entirely, for commercial reasons, and that the obtaining of a personal supply of cannabis can only have been a minor secondary reason for his involvement. The fact that financial gain was the primary reason for his involvement was a significant aggravating factor.

Mr Billinghurst's sentence

When sentenced Mr Billinghurst was 59 years old. He had many prior convictions.
In August 2007 he and Mr Jones pleaded guilty to trafficking in methylamphetamine between 14 July 2004 and 19 October 2004. Mr Billinghurst was sentenced to 4 years' imprisonment, with a non-parole period of 3 years. His trafficking on that occasion involved acquiring methylamphetamine in other States and bringing it into Tasmania hidden in vehicles that had been purchased for the purpose. It was a major commercial operation.
While the charge to which his current appeal relates was pending, Mr Billinghurst trafficked in methylamphetamine again. He was arrested, prosecuted, found guilty by a jury, and sentenced to imprisonment. That trafficking charge related to a period of 4 days in November 2014 during which police officers had him under observation. He was found in possession of about $5,000 worth of methylamphetamine, packaged in readiness for sale, with an intention to sell at least some of it. He was sentenced to 18 months' imprisonment, with a non-parole period of 13 months.
He has other drug-related convictions. In Victoria in 1987 a magistrate sentenced him to 7 days' imprisonment for possessing cannabis, concurrently with some other longer sentences. In 1990 a magistrate in Melbourne sentenced him to 2 months' imprisonment for possessing heroin, concurrently with another sentence. In 2000 a magistrate in Queensland fined him $350 for possessing dangerous drugs. At the time of his arrest in 2013 he also had dozens of convictions for offences involving dishonesty, damage to property, and violence. His first prison sentences were imposed in 1975, when he was only 16 years old. Before his current incarceration he had spent a total of about 21 years in prison.
It was appropriate for his sentence to be a heavy one, having regard to the scale and duration of the trafficking operation, and his role in it as one of the two principal offenders. There were aggravating features that I have referred to above, at [11] and [12].
A number of common mitigating factors were absent in relation to Mr Billinghurst. He did not desist from the trafficking before he was caught. He was certainly not a first offender. There was no significant remorse. He did not plead guilty.
His counsel made a submission to the effect that the learned trial judge might inappropriately have treated his failure to plead guilty as an aggravating circumstance. I reject that submission. His Honour made it very clear that he was not doing that. In his sentencing comments he said the following about the three defendants:
"While it is their right to put the State to the expense of a long and complex trial in the face of overwhelming evidence, and while they are not to be punished for exercising their rights to plead not guilty, they have absolutely no entitlement to the significant discount on sentence that is afforded to those who show remorse and assist the administration of justice by accepting their guilt."
His Honour plainly did not give Mr Billinghurst a heavier sentence because he defended the charge against him. He was sending a message to Mr Billinghurst and others that any offender in his situation would get a "significant discount on sentence" if a plea of guilty was entered.
As to remorse, the fact that Mr Billinghurst was trafficking in methylamphetamine again in November 2014, only 14 months after his arrest, certainly indicates that he was not sorry at that time for the harm that his trafficking had caused. For the purposes of sentencing, the learned trial judge was provided with a letter from Mr Billinghurst in which he said he was "deeply embarrassed and remorseful". The letter contained information to the effect that he regretted the impact that his offending had had on his life and on his family. There was not a word about the impact that his activities had on any drug users or anybody else. The learned trial judge referred to that letter in his sentencing comments, but said, "I do not accept that he is truly remorseful. His plea of not guilty does not sit happily with that assertion."
Mr Billinghurst had a number of health problems when he was sentenced. The learned trial judge's only comment as to his state of health was, "His indifferent health unfortunately entitles him to no leniency." In the sentencing proceedings, it was not asserted that imprisonment was likely to exacerbate any of Mr Billinghurst's medical problems, nor that his medical problems were likely to result in imprisonment being significantly more burdensome for him than for other prisoners. In those circumstances, it is appropriate for ill-health not to be regarded as a significant mitigating factor. The proper approach is as stated in R v Smith (1987) 44 SASR 587 by King CJ, with whom Cox and O'Loughlin JJ agreed, at 589:
"The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health."
There was little for the learned trial judge to take into account by way of mitigation in relation to Mr Billinghurst. The significant mitigating factors, and my comments in relation to them, are as follows:
·He had an unfortunate childhood, receiving no proper education, and being expelled from school in his first year of high school. As a result he is illiterate. His Honour observed that he had a deprived and dysfunctional upbringing, and that his criminal behaviour was a product of that upbringing, but rightly observed that he was "nonetheless criminally responsible and accountable for his actions".
·He had been married for 20 years. Whilst his marriage had been a troubled one, he was, in the words of his counsel, trying to salvage something from it. However the impact of an offender's imprisonment on a family member should not be taken into account as a mitigating factor in the absence of extreme or exceptional circumstances: Oliver v Tasmania [2006] TASSC 95 per Underwood CJ, with whom Evans J agreed, at [2]-[11]. It was not suggested that the imprisonment of the appellant would have sufficient impact on any family member for that impact to be taken into account as a mitigating factor. The emotional impact on the appellant of his separation from his wife was a relevant mitigating factor, but a very minor one.
·He has a son who was 2½ years old at the time of the sentencing, and was concerned about him. In my view, since that child was conceived when Mr Billinghurst must have known that he was very likely to go to prison for a long time as a result of the trafficking charge that was pending, any anguish that he now suffers as a result of his separation from his son is not a significant mitigating factor.
·It was likely that Mr Billinghurst would spend at least part of his sentence in protective custody. That subject was mentioned only in the letter that I have referred to, and not in his counsel's oral submissions. He mentioned his medical conditions and "association issues" as reasons for serving his sentence "in protection". His counsel argued that a year in protective custody is equivalent to between 18 months and 2 years in ordinary custody, relying on commentary from the website of the Judicial Commission of New South Wales and on some Victorian cases: R v Rostom [1996] 2 VR 97; R v Malceski [2004] VSCA 138. However there is no reason to think that protective custody in Tasmania is as unpleasant as protective custody in the prisons of other States, particularly if one of the objectives is to cater for the prisoner's medical problems. Counsel for Mr Billinghurst argued that the learned trial judge must have attached insufficient weight to this factor, but there is nothing in his Honour's sentencing comments to warrant that conclusion.

Counsel for Mr Billinghurst submitted that the learned trial judge erred in failing to take into account the delay between the offending, which ended in September 2013, and the trial in 2017, as well as Mr Billinghurst's strict bail conditions during that period. However it was not submitted to the learned trial judge or to this Court that the delay in bringing the appellants to justice was inordinate. The trial was a complex one. The Crown called 73 witnesses. Police officers intercepted about 40,000 telephone calls and SMS messages. A selection of telephone calls was made for playing during the trial, but the selected recordings ran for more than six hours. Altogether the Crown tendered 130 exhibits on the trial. There was nothing to suggest that the Crown had been dilatory in preparing the case for trial, and that there was certainly nothing to suggest that Mr Billinghurst had rehabilitated himself in the years that the case was pending. This was not a case of "sentencing for a stale crime": R v Todd [1982] 2 NSWLR 517 at 519. It was not a case in which delay was a significant mitigating factor.
Mr Billinghurst's original bail conditions in September 2013 included a residential condition, a curfew condition applying between 10pm and 6am, a condition requiring him to pay into court $10,000, conditions restricting his movements to the municipalities of Glenorchy, Hobart and "Kingston", and a prohibition on associating with seven named individuals. Those conditions were not unduly onerous, having regard to the nature of the prosecution case.
The fundamental principles relating to the determination of sentencing appeals are as stated in House v The King (1936) 55 CLR 499, where Dixon, Evatt and McTiernan JJ said at 504-505:
"But the judgment complained of, namely, sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
From the sentencing comments of the learned trial judge, it is not possible to identify any specific error that could have affected his sentencing discretion. It is therefore necessary to determine whether the sentence of 9 years' imprisonment, with a non-parole period of 6 years, was "unreasonable or plainly unjust".
There have been few cases in Tasmania in which offenders have been sentenced for trafficking on a scale comparable to that of these appellants. It therefore cannot be said that there is a sentencing tariff for such cases. Because the facts of every case are different, the consideration of sentences imposed in other cases is of limited value. However I think it is fair to say that the sentence imposed on Mr Billinghurst, and by that I am referring to both the head sentence and the non-parole period, is consistent with the sentences imposed in Tasmania's most serious recent drug cases: Director of Public Prosecutions v Williamson [2013] TASCCA 6; Stebbins v Tasmania [2016] TASCCA 6; Farhat v Tasmania [2017] TASCCA 20.
Having regard to all the circumstances relevant to Mr Billinghurst and his trafficking, but particularly to the scale and duration of his offending and the sophistication of the trafficking enterprise, I consider that the head sentence of 9 years' imprisonment was most appropriate. This was a case in which a heavy prison sentence was called for in the hope of deterring others, and even Mr Billinghurst, from similar offending in the future.
A non-parole period may not be less than one half of the period of the head sentence: Sentencing Act 1997, s 17(3). A non-parole period should be "the minimum time that a judge determines justice requires that he [the offender] must serve having regard to all the circumstances of his offence": Power v The Queen (1974) 131 CLR 623 per Barwick CJ, Menzies, Stephen and Mason JJ at 629. All of the circumstances of the offending, and all relevant personal circumstances of the offender, should be taken into account in determining a non-parole period, but the seriousness of the offending and the prospects of the offender's rehabilitation are particularly significant. By Tasmanian standards, this was an unusually serious trafficking case. In assessing Mr Billinghurst's prospects for rehabilitation, it was relevant for the learned trial judge to take into account the fact that this was his second trafficking escapade, the fact that he engaged in a third trafficking escapade whilst he was on bail awaiting trial, and the lack of any indication of significant remorse. In the circumstances, I consider that the 6-year non-parole period was well within the bounds of reasonableness. If the Parole Board thinks fit, Mr Billinghurst may spend as long as 3 years in the community under the supervision of a parole officer, and subject to strict parole conditions.
For these reasons, I consider that Mr Billinghurst's head sentence and non-parole period were not manifestly excessive.

Reasons relating to Mr Billinghurst's non-parole period

The learned trial judge sentenced all three defendants together. He made a series of comments immediately before sentencing them, dealing with the charges, the scope and nature of the trafficking operation, the role of each of the three men, their prior convictions or lack thereof, and their personal circumstances. He then proceeded to sentence them. He did not separately explain why he had chosen a particular non-parole period for Mr Billinghurst or any of his co-offenders. Mr Billinghurst contends that the learned trial judge was obliged to state the reasons for his choice of 6 years as the non-parole period and that those reasons cannot be discerned from his sentencing comments.
A similar argument was advanced in Hodgetts v Tasmania [2018] TASCCA 15. The Court's judgment in that appeal was delivered after the hearing of this appeal. That appellant's submissions as to reasons for his non-parole period were rejected. There is no basis for distinguishing this case from that one in relation to this point. This Court must therefore follow the decision in that case.
As a general rule, when a judicial decision is subject to a right of appeal, there is a common law requirement that the judicial officer give reasons for his or her decision, and the failure to give reasons, or adequate reasons, amounts to an error of law: Pettitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. In Phillips v Arnold [2009] TASSC 43, 19 Tas R 21, Crawford CJ, with whom the other members of the court agreed, said at [64]:
"The reasons why the law requires adequate reasons for decisions have been stated many times. They include that the parties should be given an understanding as to why the case was decided in the way it was. In particular, the losing party should be so informed. The need for open justice is regarded as paramount. Another reason arises out of the fact that Parliament has given a right of appeal or review of a decision. Without adequate reasons, an appeal cannot be laid properly and sufficiently before the appellate court and the decision cannot be examined adequately."
By virtue of s 17(3A) of the Sentencing Act, if a sentence of imprisonment is imposed on an offender and the sentencer does not make an order as to eligibility for parole, the offender is not eligible for parole in respect of that sentence. Section 17(2)(b) gives a sentencing court a discretion to order that the offender is not eligible for parole before the expiration of a specified period. Section 17(7) requires a court to give its reasons for making an order under s 17(2). There is no reason why a sentencing judge's reasons in relation to the fixing of a non-parole period should not be brief. Similarly, there is no reason why a sentencing judge's reasons for the making of a number of sentencing orders in a particular case should not be brief. A sentencing judge need only say enough for it to be possible for the reasons for making the sentencing orders to be understood, and for an appellate court to be able to examine the sentencing orders and determine whether the sentencing judge erred in making them.
There is no reason why a judge who has decided to impose a sentence that comprises a head sentence of imprisonment and an order specifying a non-parole period should not simply summarise all the matters that he or she has taken into account in deciding what sentence, or what package of sentencing orders, is appropriate. Ordinarily it will be crystal clear that the specified non-parole period, whether it is half of the head sentence or a longer period, is the minimum time that the sentencing judge considers that justice requires the offender to serve after taking into account the degree of seriousness of the offending and all circumstances relevant to the offender. A sentencing judge might choose to make some comments that are specific to the non-parole period, but that is not essential.
In this case, the learned trial judge summarised all the matters that he took into account in deciding what sentencing orders were appropriate for Mr Billinghurst. It is obvious that the non-parole period of 6 years was the minimum time that his Honour considered that justice required Mr Billinghurst to serve after taking into account the degree of seriousness of his offending and all circumstances relevant to him. The reasons stated were sufficient for anyone to understand why such a heavy sentence, with such a long non-parole period, was imposed. And his Honour's comments were sufficient for this Court to examine his sentencing orders and decide whether or not he erred in making them.
The ground relating to this issue should therefore fail. It follows that Mr Billinghurst's appeal should be dismissed.

Mr Leaman's adjournment application

The jury brought in their verdicts on 11 December 2017. The learned trial judge almost immediately proceeded to receive sentencing submissions from counsel and to sentence the three defendants. At the beginning of the sentencing proceedings, counsel for Mr Leaman indicated to the learned trial judge that she desired an adjournment to obtain medical reports. She said, "Well, what I was going to say is, in any event, which your Honour might not agree with regardless, is in relation to Mr Leaman, what I was going to ask for was an adjournment into the new year so that I can get medical reports in relation to his medical conditions." His Honour said that he would not take that course. Counsel replied, "No. Okay then." She did not persist with her request, and did not ask his Honour to give reasons for not being willing to grant an adjournment.
There were good reasons not to grant an adjournment. The charge had been pending for over four years. The trial was a long one, the jury having been empanelled on 25 October. The possible need for a prepared plea in mitigation should not have taken anyone by surprise. It was reasonable to expect that Mr Leaman was well aware at least of the symptoms he was experiencing, and able to provide instructions to his counsel on that subject.
In her subsequent plea in mitigation, Mr Leaman's counsel provided the learned trial judge with information to the following effect. Mr Leaman was the victim of a shooting in 2005. That had had a serious impact upon his life. He had lost all capacity for employment. He suffered significant pain as a result. He was going to feel the effect of a custodial sentence "far more because of the injury that he suffers from". His condition seemed to have been aggravated by the stress of the court environment.
The learned trial judge appears to have taken Mr Leaman's health problems into account in sentencing him. When speaking of Mr Leaman's personal circumstances, his Honour said, "His health is not presently good and he suffers pain exacerbated by stress."
The ground of appeal relating to the adjournment application cannot succeed unless this Court is satisfied that the refusal of the adjournment resulted in a miscarriage of justice. That is because of the wording of s 402(1) of the Criminal Code. That subsection reads as follows:
"(1) On an appeal the Court shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, or that the judgment or order of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal."
There is no basis upon which this Court can conclude that the granting of an adjournment and the obtaining of medical reports might have resulted in a less unfavourable outcome for Mr Leaman. That is because we simply do not know what any such reports might have said.
It follows that his counsel's submissions as to the adjournment application must be rejected.

Mr Leaman's sentence

Mr Leaman contends that his sentence of 5 years' imprisonment, with a non-parole period of 2½ years, was out of proportion to the extent of his involvement in the trafficking operation. It is therefore necessary to consider the extent of that involvement. The learned trial judge described him as a "junior partner", but I do not think he intended that description to be taken literally. That is to say, I do not think that he should be taken to have implied that he was satisfied beyond reasonable doubt that Mr Leaman received a precise share of the profits of the trafficking operation and that that share was less than one third. Rather, I think he should be taken to have implied that Mr Leaman, though not involved to the extent of Mr Billinghurst and Mr Jones, was heavily involved in many aspects of the operation, and more involved, after those two men, than anyone else.
In his sentencing comments, his Honour referred to the following aspects of Mr Leaman's involvement:
·     His involvement was less than that of Mr Billinghurst and Mr Jones.
·     He assisted in importing drugs hidden in motor vehicles brought across Bass Strait.
·     He assisted in transporting drugs and selling them in Tasmania.
·     He assisted in ferrying drugs from their storage place at Mt Lloyd to the Shed.
·     To a lesser extent, he was involved in transporting drugs to and from his home at Granton.
·     Based on his bank records, his lifestyle, and his apparent possessions, he did not appear to have benefited from the business to anywhere near the extent of Mr Billinghurst and Mr Jones.
The memorandum prepared by counsel as to the factual basis of the sentencing contained the following information relating to Mr Leaman's involvement in the trafficking:
·     One of the mobile phones used in the trafficking that was the subject of intercepts was in the name of Mr Leaman. The rest were in false names.
·     One of the first calls intercepted by the police was a call on 13 February 2013 when Mr Billinghurst told Mr Leaman, "No tick, tell Adam."
·     On 24 July 2013 Mr Jones told Mr Billinghurst that he had brought down things for Mr Leaman that morning and that the Shed had been like a "McDonald's Drive Thru".
·     There were calls between Mr Jones and Mr Leaman in which they discussed cannabis.
·     There were intercepted calls in which Mr Leaman and Mr Jones discussed pills or prescription medication, including one call where they discussed where the pills were concealed at the Shed.
·     CCTV footage from the Commonwealth Bank at Moonah showed Mr Jones and Mr Leaman attending the branch on separate occasions when deposits were made to the account of a man who had sold prescription medication. The deposits were in sums of between $500 and $1,000. There was evidence that that man brought quantities of oxycontin to Hobart from interstate on 18 June 2013, and that he went to the Shed to sell medication on at least five occasions.
·     There was evidence at the trial of Mr Leaman making deliveries of drugs to purchasers.
·     Intercepted telephone calls and other evidence showed that he regularly delivered deals of amphetamine to a woman who was selling them.
·     On 13 June 2013 that woman phoned Mr Leaman, asking him to "come over", and saying that she had "a little bit left". The police then observed him attending her address. The next day her house was searched, and the police found two bags of amphetamine with a purity of between 3.4% and 3.5%.
·     On 25 April 2013 a man visited Mr Leaman's address at Granton, and was later intercepted by police officers on the Midland Highway at Perth, where he was found in possession of a package containing just under one ounce of amphetamine, with a purity of between 3.5% and 3.7%. That level of purity was consistent with drugs being sold at street level. That man was charged as a result of that interception.
·     After that man was intercepted, there were a lot of phone calls between his son, Mr Billinghurst and Mr Jones, but apparently not Mr Leaman.
·     In April 2013 two couriers collected a white utility from Mr Billinghurst in Melbourne and brought it to Tasmania on the Spirit of Tasmania. Mr Leaman travelled with a red utility on the same voyage. The red and white utilities were swapped at a service station in Perth. Mr Leaman drove the white utility to Hobart. Police officers intercepted a telephone call in which Mr Billinghurst told Mr Leaman that he would need to take the bumper bars and tailgate off the white utility.
·     There were phone calls in which Mr Billinghurst discussed arrangements for Mr Leaman to bring drugs into Tasmania by air.
·     In a 6-month period from October 2012 to April 2013, Jetstar records showed that Mr Leaman took 6 flights. Between August 2012 and August 2013, he took 13 trips on the Spirit of Tasmania. The air and sea travel costs totalled over $3,000.
·     There was evidence that Mr Billinghurst and Mr Leaman regularly attended used car yards in Melbourne.
·     In July or August 2013 the police observed Mr Jones and Mr Leaman attending an abandoned blue Commodore vehicle in a paddock on Mr Jones' property. The vehicle was later searched and found to contain digital scales with apparent traces of methylamphetamine on the weighing plate. In an intercepted phone call on 8 July 2013, Mr Jones and Mr Leaman discussed getting "little things" from that vehicle. Mr Leaman was also observed to walk towards an area where drugs were later found concealed in the bushland on Mr Jones' property.
·     On 4 September 2013 police officers found a refrigerator/freezer in that bushland, containing 381 grams of amphetamine of 3.3% purity, 74.6 grams of methylamphetamine of 70.4% purity, a quantity of a damp crystalline solid that was negative for common drugs, and a set of digital scales.
·     On the same day at Mr Leaman's home, searching police officers found 28.3 grams of cannabis, a box of new snap lock bags, and $2,900 in cash.
·     Mr Leaman was interviewed by police officers twice. He made admissions as to travelling organised by Mr Billinghurst, running errands for Mr Billinghurst and Mr Jones, knowing how to stash things in tyres, the probable presence of drugs in cars that he drove, and knowledge of the location where drugs were located at Mt Lloyd.
·     Bank records showed that $15,000 was deposited into Mr Leaman's bank account in Tasmania on one occasion, that $20,000 was deposited on another occasion, and that both sums were withdrawn shortly afterwards in Melbourne.

Counsel for Mr Leaman argued that it was not appropriate for the learned trial judge to characterise him as a "junior partner", and that his role was more like that of a valued employee. She argued to the effect that he had received a manifestly excessive sentence as a result of his Honour ascribing too major a role in the trafficking operation to him. On the material before this Court, there is no reason to think that his role in the trafficking operation was that of an entrepreneur or mastermind. However his involvement was greater than anyone other than Mr Billinghurst and Mr Jones. I accept a submission made by Ms Shand, for the Crown, to the effect that it is likely that he brought larger quantities of drugs into Tasmania on each of his trips on the Spirit of Tasmania than on his trips by air. He appears to have been heavily involved in every aspect of the trafficking enterprise.
A number of common mitigating factors were absent in relation to Mr Leaman. Although he made some limited admissions, he did not co-operate with the police. He did not voluntarily desist from involvement in the trafficking operation, even after couriers were arrested. He did not plead guilty. There was no indication of remorse.
However there were some mitigating factors relevant to Mr Leaman's sentencing. Those factors, and my comments in relation to them, are as follows:
·     He had no significant prior convictions, except perhaps for some imposed by a magistrate in 2007 in relation to a social security prosecution. However the weight to be attached to this factor is not great because his offending involved multiple unlawful acts over a period of about 14 months.
·     Although he did not plead guilty, he was willing to facilitate the administration of justice during the trial by agreeing to facts asserted by the Crown and thereby obviating the need for those facts to be formally proved, to a far greater extent than Mr Billinghurst and Mr Jones.
·     Imprisonment was likely to be unusually burdensome for him because of his state of health, which was a result of the shooting in 2005. It appears that the learned trial judge accepted his counsel's submission to that effect since he mentioned in his sentencing comments that his health was not presently good and that he suffered pain exacerbated by stress.
Mr Leaman was 38 years old when he was sentenced, and younger than his co-offenders. Mr Billinghurst was 59. Mr Jones was 42. In my view Mr Leaman's age was a neutral factor. The fact that he was the youngest of the three accused was not a factor weighing in favour of leniency.
Mr Leaman's head sentence of 5 years' imprisonment was a substantial one, but it was appropriate for the learned trial judge to impose a substantial sentence for the purpose of general deterrence. I am not satisfied that his Honour erred by overestimating the extent of Mr Leaman's involvement in this large trafficking enterprise. It may be that his comment that Mr Leaman was a "junior partner" was somewhat inappropriate, but it must be remembered that his Honour's sentencing comments were made almost immediately after the verdict. They were not comments that were carefully formulated over a period of days or weeks. His Honour was uniquely placed to assess the level of Mr Leaman's criminality. I have no reason to think that he overestimated it.
It should be noted that his Honour imposed the shortest possible non-parole period on Mr Leaman: Sentencing Act, s 17(3). The imposition of the shortest possible non-parole period was appropriate having regard to Mr Leaman's lack of significant prior convictions and his Honour's acceptance that his medical condition would make imprisonment especially burdensome for him.
Having regard to all the relevant circumstances, particularly the scale and duration of the trafficking enterprise and the apparent extent of Mr Leaman's involvement in it, I am not satisfied that his sentence was manifestly excessive.

Conclusion

For these reasons, I would dismiss both appeals.

File Nos CCA 3626/2017
CCA 3673/2017

GARRY MAXWELL BILLINGHURST v STATE OF TASMANIA
CHRISTOPHER ADAM LEAMAN v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

PEARCE J
10 October 2018

I agree with Blow CJ that, for the reasons given by his Honour, both appeals should be dismissed.
Counsel for Mr Leaman contended that the learned sentencing judge's description of him as a "junior partner" overstated the nature and level of Mr Leaman's involvement in the criminal enterprise, and he should have been sentenced as a "valued employee". To my mind, arguments about such shorthand characterisations, neither of which have any special or recognised meaning, do not advance Mr Leaman's contention that the sentence is manifestly excessive. An appeal on this ground is to be determined on the facts as found by the sentencing judge and the facts which counsel on this appeal agree are established by the evidence at trial. They are set out in the Chief Justice's reasons. Against those facts I am not persuaded that the sentence is unjust or unreasonable.

File Nos CCA 3626/2017
CCA 3673/2017

GARRY MAXWELL BILLINGHURST v STATE OF TASMANIA
CHRISTOPHER ADAM LEAMAN v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

MARSHALL AJ
10 October 2018

I agree with the reasons for judgment of Blow CJ.