11 The judge said that, in fixing appropriate sentences, he regarded the pleas of guilty as of significant utilitarian value that would have to be reflected in the sentences which he imposed. He then noted that the respondent's state of psychological health was relevant in fixing the appropriate sentence because of its bearing upon the respondent's moral culpability. His Honour took the view, in the light of the authorities, that the respondent's state of mind at the time of the offending was such that it was appropriate to modify the principles of general deterrence in fixing an appropriate sentence.
12 In support of his appeal, the Director of Public Prosecutions submitted that the sentence of 12 months imposed on count 1 was manifestly inadequate to reflect the gravity of the crime of trafficking in a commercial quantity of this type of drug. In that respect I think that he accepted that proof of the offence depended largely upon the fact that the quantity of drugs found by police "stored" in the house upon raid was itself in excess of the commercial level. Thus the Crown relied upon the statutory definition of "trafficking" as including "possession for sale". Just how much of the substance the respondent had participated in "trafficking" during the month alleged in the charge was not able to be accurately calculated. The Director could not point to any specific error that his Honour had made in the exercise of his discretion. Indeed there was, as it seems to me, an abundance of evidence to support the findings to which he had come. Mr Coghlan's submission was that the sentence imposed on count 1 was itself reflective of error because the sentence of 12 months' imprisonment, partially suspended, was just far too low for an offence of "commercial trafficking" and, if left to stand, will create an inappropriate precedent.
13 Mr Priest, on behalf of the respondent, correctly pointed out that the Crown, in cases where it relies upon manifest inadequacy of sentence as its primary ground of appeal, faces substantial obstacles. It is not sufficient, he submitted, that this Court is of the view that, if it was exercising the discretion for itself, it would have imposed a different, and higher, sentence. Rather, Mr Priest said, it must be shown that the inadequacy of the sentence imposed is so clear and egregious that the error is apparent on its face. He referred in this regard to Director of Public Prosecutions v. Johnston[1]. In other words, the inadequacy complained of must be so obvious as to "shock the public conscience".[2] Mr Priest pointed to the facts of this case as presented before the judge and the prosecutor's statement to the judge to the effect that he would be in error unless he imposed a sentence of imprisonment to be actually served. He did not suggest, so Mr Priest submitted, a sentence of any particular length; and it was put that the submission had been made in the context of the material which was before the judge, demonstrating that this was - on any view - a very unusual case of "commercial trafficking". In such circumstances, Mr Priest submitted, the judge having done as he was bidden by the prosecutor, the Director, on an appeal of this nature, should be precluded from now contending that the sentence was less than adequate. Particularly was this so, it was put, when the judge had clearly fixed a penalty which had taken into account the fact that the respondent was bound to suffer the punitive loss of his home. That loss, in the circumstances of this case, will, as the judge found, be "grossly punitive"; and the judge was entitled to come to that view, so Mr Priest contended.
14 In my view, in the very peculiar circumstances of this case, the respondent's submissions are to be preferred. The facts of this case, to which I have earlier referred, demonstrate that this was an unusual example of commercial trafficking. Of course, a sentence of the order imposed by the judge would - in normal circumstances - be wholly inappropriate and inadequate to punish an offence of trafficking in a commercial quantity of methylamphetamine. A sentence such as the one here imposed should not therefore be regarded as setting any form of appropriate standard - even for a Crown appeal. But the circumstances of the offending were - as I have said - sui generis, involving as they did the taking of advantage of a man who had little capacity to make reasoned decisions and defend his own interests; and who received benefits of a type and size inconsistent with a person who was consciously and deliberately involving himself in commercial trafficking for his own benefit. It would seem that even the investigating police took a similar view, and understood that the respondent and his house were convenient utilities for the purposes of those who were controlling the operation. His Honour correctly appreciated, I think, that the respondent would eventually be heavily punished by the loss of his house; a fact that he had been unable to apprehend because of his depreciated mental state. In my view, his Honour was entitled to come to that conclusion.
15 In the very unusual circumstances demonstrated to his Honour, and bearing in mind the principles which apply to Crown appeals, I am not prepared to conclude that his Honour's discretion was erroneously exercised. It has often been said by superior courts that prosecution appeals should not be allowed to unduly circumscribe the sentencing discretion of trial judges. There must always be a place, (as King, C.J. said in Osenkowski[3]) for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. I agree with Mr Coghlan that it will be a most unusual case of trafficking in commercial quantities of drugs where the judge's sympathies could be so excited. But I am disposed to the view that this was such an unusual case, that the judge was entitled to display the leniency which he did. But, even if I am wrong about that, this is the type of appeal where I would have been inclined in any event to exercise the overriding discretion which this Court has on a Crown appeal to decline to intervene, even if I concluded that an error had been disclosed.
16 For these reasons I would dismiss the appeal; but in doing so emphasise once again that the decision to which I have come in the peculiar circumstances of this case sets no precedent for other cases of trafficking in commercial quantities of drugs.