Kirkwood, R. v

For offences involving counterfeit films, music and computer games, a custodial sentence may be necessary where the infringing activity is large-scale and prolonged and causes commercial damage to rights-holders. The court must nevertheless assess the true commercial character of the offending and give proper weight to mitigation, including an early guilty plea, limited proceeds, an ad hoc method of sale and the absence of previous similar offending. Comparative sentencing decisions require close attention to differences in duration, scale, profit and antecedents. A sentence which gives insufficient effect to those matters is excessive and should be reduced to the proper custodial term.

R v Kirkwood concerned an appeal against sentence with the leave of the single judge. At Birmingham Crown Court, the appellant pleaded guilty to offences involving the possession for sale or distribution of counterfeit films, music and computer games, unclassified video recordings, and equipment adapted to make infringing copies.

The seized material included many copied discs, computers with copying and DVD-ripping software, and a duplicator. The appellant accepted that he had copied and distributed the material, but maintained that sales were ad hoc, mainly to friends and family, and generated minimal proceeds. The judge imposed concurrent sentences producing a total of 30 months’ imprisonment. The issue was whether that term was excessive.

1. Appeal allowed. The court quashed the 30-month sentence and substituted a sentence of 21 months’ imprisonment.
2. A custodial sentence was necessary. The infringing activity was extensive, continued over a prolonged period, and caused commercial damage to those producing the films, music and games. Although the conduct began as a hobby, it had developed into a commercial operation. The appellant must have known that it was unlawful.
3. The court nevertheless held that 30 months was excessive. It gave weight to the early guilty plea, the absence of previous similar convictions, the ad hoc and limited nature of the sales, the modest proceeds, and the delay between investigation and sentence.
4. The comparative sentencing decisions required careful use. In Gross [1996] 2 Cr App R(S) 189 and Lewis [1997] 1 Cr App R(S) 208, the offending had occurred over shorter periods. The court also compared the lower profits here with those in Ansari [2000] 1 Cr App R(S) 94 and Gleeson [2002] 1 Cr App R(S) 112. Those comparisons informed, but did not displace, the individual assessment of proportionality.

• Court of Appeal (Criminal Division): Allowed the appellant’s sentence appeal and substituted 21 months’ imprisonment for the 30-month sentence.
• Crown Court at Birmingham: Following guilty pleas, imposed concurrent sentences producing a total of 30 months’ imprisonment.