No: 200900874/A1 
Neutral Citation Number: [2009] EWCA Crim 1200
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Wednesday, 3 June 2009

B e f o r e:

LADY JUSTICE HALLETT DBE 
MR JUSTICE MADDISON 
MR JUSTICE HICKINBOTTOM 
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R E G I N A 

v 

JOHN SNOWDEN 
 
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Mr M Smith appeared on behalf of the Appellant

Mr R Herbert appeared on behalf of the Crown
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J U D G M E N T
1.	Mr Justice Maddison: On 6 January 2009 at the Crown Court at Leeds the appellant, John Snowden, who is 53 years of age, pleaded guilty to seven counts of publishing an obscene article contrary to section 2(1) of the Obscene Publications Act 1959.  On 6 February he was sentenced by His Honour Judge Hoffman to serve two and a half years' imprisonment concurrently on each count.  An order was also made for the forfeiture of the DVDs and computer equipment to which we will refer in due course.
2.	He appeals against the sentences he received by leave of the single judge.
3.	The case arose out of the fact that in May or June 2008 a letter addressed to the appellant ordering pornographic material was posted through the wrong letter box in a house in Pontefract.  The householder opened the letter, saw what was in it and took it to the local police station.  
4.	As a result, a search warrant was obtained by the police and the appellant's home was searched on 25 June 2008.  The police recovered DVD copying computer equipment and 2840 pornographic DVDs.  Some of these had obviously been produced in an amateur fashion, but most were made abroad and were professional productions.  Some 55 of the DVDs were categorised as being obscene for the purposes of the 1959 Act.  Counts 1 to 7 were specimen offences representing those DVDs and also representing to a degree, to which we will return, a course of previous dealing in such material on the appellant's part.
5.	The majority of the 55 DVDs involved activity with animals.  The remainder involved activities referred to as fisting, urination and coprophilia.  
6.	It is we think appropriate, however briefly, to describe in a little more detail the activities shown on the DVDs.  The subject matter included women having oral and/or vaginal sex with a dog, a horse and a pig; men having sex with a cow and a chicken; women masturbating a horse and dog; the introduction of a mouse into a woman's vagina by means of a tube; the introduction of an eel into a woman's vagina and anus; fists being inserted into the vaginas of women who were evidently unwilling and in discomfort and distress; and various activities, into the detail of which it is unnecessary to go, involving defecation, vomiting and urination.
7.	The police also recovered a list of titles and a book which contained details of films which the appellant had sent to various customers.  Some 293 customers were involved.  Of these 69 had received a DVD or video which contravened the Act, though it was not possible to say if more than 69 obscene DVDs or videos had been sent, or whether or not their titles were the same as those recovered by the police on 25 June 2008.  The documents recovered indicated that the appellant had been posting DVDs or videos since about 2002.  
8.	There was some evidence recovered by the police that the appellant's daughter had been involved in the making of at least one pornographic film, but she had not been involved in any film that contravened the 1959 Act.
9.	The value of all of the DVDs recovered at the appellant's home exceeded £14,000.  The appellant's own records indicated prior trade in DVDs and videos to the total value of more than £40,000.
10.	The appellant was arrested.  He made full admissions in interview.  He admitted that he had built up a stock of DVDs over the years by going to carboot sales and exchanges of DVDs.  He agreed that he had copied some DVDs and he also accepted that he had compiled the list found by the police.  He said not only that he had exchanged DVDs but that he had received money for them.  He did not accept that all of the trading was for money, since some of it took the form of an exchange system.  He denied actively collecting obscene DVDs but said that he had received them through his exchange procedures.  He admitted sending some to customers who requested them.  He agreed that his daughter had assisted in the making of a pornographic video, but not an obscene one.  
11.	The appellant came before the court as a man with no previous convictions.  The judge had a pre‑sentence report, which suggested that the offences were motivated by financial gain.  The appellant was unemployed and had been for a significant period of time and was drawing state benefits.  He lived with his wife and the 19‑year old daughter to whom we have already referred.  He had three other children who were now grown up and who had left home.  The report recommended a community order.
12.	The judge also had a medical report referring to various medical complaints from which the appellant suffered, principally diabetes and blood pressure.
13.	Passing sentence the judge observed that the appellant had pleaded guilty to the seven offences.  He would receive credit for his plea, but had had little choice but to plead guilty having been caught red‑handed and having kept the records to which we have referred.  The judge went on to refer to the 55 or so DVDs deemed to be obscene and said that this was the tip of the iceberg given the course of previous trading.  These were serious offences, said the judge.  There was not a lot of guidance for sentencing in this type of case, but the judge said that he would apply his common sense and his long experience in the law in passing the sentences against which this appeal is now lodged.
14.	On behalf of the appellant Mr Smith, both in writing and expanded upon by way of oral argument in front of us, submits that the sentence was manifestly excessive and that the learned judge failed to give sufficient weight to numerous different features of the case.  One was the pleas of guilty entered at the first opportunity by the appellant.  The judge also failed properly to take into account the appellant's admissions to the police, his age and effective good character, the fact that the DVDs were supplied only to adults who requested them, with the recipients not therefore being corrupted, that although the appellant traded in DVDs the trading was done privately and not in a public way, and that none of the material involved what might be said to be extreme obscenity involving children or torture.  Moreover, it is said that the judge failed properly to take into account the appellant's health problems and the positive and constructive comments in the pre‑sentence report.
15.	Mr Smith also has referred us to various different authorities which provide at least some very general guidance as to the sort of sentence appropriate in cases such as this, though we must say that of the authorities cited to us the only one which we regard as really even remotely approximating the present case is that of Lamb [1998] 1 Cr App R(S) 77.
16.	We begin, in considering the merits of this appeal, with the factual basis on which the appellant was to be sentenced.  As we have said, it was accepted that the sentence should properly reflect not only the 55 specific recovered DVDs but also the previous course of trading, though we have regard to the fact that by virtue of section 2(3) of the Obscene Publications Act 1959 the previous course of trading properly to be taken into account should not exceed a period of two years. 
17.	We return to the case of Lamb, a case in which the appellant had pleaded guilty to five similar counts.  He ran a mail order business.  A sentence of five years was reduced by this court to one of 30 months.  Lamb did have previous convictions for similar offences.  It is by reference to that authority that Mr Smith argues, in addition to his other submissions, that the sentences passed in the present case were clearly excessive.  However, each case turns on its own facts and we do not have any more than a general description of the type of material involved in that case. 
18.	All of these submissions we have carefully considered, but, in the end, our conclusion is that it cannot properly be said that the sentences were manifestly excessive.  We have regard, first of all, to the nature of the material seized.  This was, in our judgment, if not material of the most extreme kind, nevertheless, extreme obscenity.  The videos in particular showing women in a state of distress and discomfort being fisted was material which it seems to us any reasonable person would regard as constituting extreme obscenity.  Moreover, we take into account the number of videos recovered on the occasion of the police raid on the appellant's home and we take into account the fact that the pleas did represent a course of past trading.  Therefore it is appropriate also to take into account the commercial aspect which was involved in this case.
19.	For the avoidance of doubt, we do not regard it in the circumstances as an aggravating feature that the appellant involved his daughter in the way to which we have referred, because on the material available to us the daughter was involved not as a participant but as a camera operator in the making of videos or DVDs, which, although pornographic, were not unlawful.  It does seem to us that in those circumstances we would be straying into improper territory if we were to regard the involvement of the daughter as being an aggravating feature.  
20.	But taking into account the number and nature of the videos, the period of trading, the commercial aspect to which we have referred, the fact that the maximum sentence was one of three years but that there were seven counts here, and that, in our view, the appellant was entitled to a discount of no more than 20 per cent for his pleas of guilty having been caught red‑handed, we find it impossible to say that the total sentence of 30‑months was one which was manifestly excessive even though other judges might have in the circumstances imposed slightly lesser sentences.  For those reasons this appeal is dismissed.