Snowden, R v

In sentencing for publishing obscene articles, the factual basis may reflect an accepted course of previous trading as well as representative specimens. However, section 2(3) of the Obscene Publications Act 1959 confines that course to two years.

The assessment of whether a custodial sentence is manifestly excessive depends on the nature and quantity of the material, the duration and commercial character of the trading, the available maximum sentence, the number of counts, and proper credit for a guilty plea. Material involving extreme obscenity may justify a substantial immediate sentence. Conduct that is not unlawful should not be treated as an aggravating feature merely because a family member was involved in it.

The appellant pleaded guilty at Leeds Crown Court to seven specimen counts of publishing an obscene article contrary to section 2(1) of the Obscene Publications Act 1959. He received concurrent sentences of two and a half years’ imprisonment, with forfeiture of relevant DVDs and computer equipment.

A search of his home recovered 2,840 pornographic DVDs, 55 of which were treated as obscene. The prosecution also relied on records indicating previous trading in DVDs and videos. The appellant appealed on the ground that the sentences were manifestly excessive, relying on his pleas, admissions, good character, health, the private adult nature of the supply, and the absence of material involving children or torture.

1. Appeal dismissed. The concurrent sentences of two and a half years’ imprisonment, producing a total sentence of 30 months, were not manifestly excessive.
2. The proper sentencing basis included both the 55 recovered obscene DVDs and the appellant’s accepted previous course of trading. The court applied section 2(3) of the Obscene Publications Act 1959, which limited the relevant prior trading period to two years.
3. The material was properly characterised as extreme obscenity. Its seriousness, together with the number of videos, the duration of trading and its commercial aspect, justified an immediate custodial sentence. The court also took account of the three-year maximum sentence, the seven counts, and a guilty-plea reduction of no more than 20 per cent because the appellant had been caught red-handed.
4. The court considered Lamb [1998] 1 Cr App R(S) 77, but regarded it as no more than a broadly comparable sentencing example. Each case depended on its own facts, and the limited description of the material in that case did not establish that the present sentence was excessive.
5. The appellant’s daughter’s involvement as a camera operator in making pornographic material which was not unlawful was not an aggravating feature. Nevertheless, the remaining aggravating circumstances justified the sentence imposed.

• Court of Appeal (Criminal Division): dismissed the appeal against concurrent sentences of two and a half years’ imprisonment.
• Crown Court at Leeds: following guilty pleas to seven counts under section 2(1) of the Obscene Publications Act 1959, imposed concurrent sentences of two and a half years’ imprisonment and made a forfeiture order.