38.
The question is whether the sentences of 4½ years for Sheppard and 2 years for
Whittle were either wrong in principle or manifestly excessive. There is no error in
principle; what we need to look at is the totality of the criminal conduct of each
appellant. There is no appeal against the consecutive sentences of 4 months in each
case for the offences under the Bail Act. Sheppard had to be sentenced for a total of
16 offences, 3 of which were for possession, 1 for distributing and the remainder for
publishing, racially offensive material. Whittle had to be sentenced for 5 offences, all
for publishing racially offensive material. The judge structured his sentence in the
case of Sheppard in this way. For counts 1 and 3 which took place between March
2005 and April 2006 12 months imprisonment concurrent; for counts 4 to 10 and 12
to 15 which all involved setting up, running and editing the website heretical.com 2½
years imprisonment concurrent with each other but consecutive to the 12 months; and
for counts 16 to 18, which were committed on bail in the summer of 2007, 12 months
concurrent with each other but consecutive to the other groups of sentences. Whittle
received concurrent sentences for each of the 5 offences involving publication on
heretical.com of articles of which he was the author.
39.
The maximum penalty for each of these offences was 7 years imprisonment.
Sheppard has a previous conviction for 2 similar offences in 2000 under sections 19
and 23 of the 1986 Act for which he received a sentence of 9 months imprisonment.
The judge in passing sentence said he had rarely seen or read and had to consider
material that was so abusive and insulting in its content toward racial groups within
society in this country. We agree with that assessment; this was truly pernicious
material. The judge rightly drew attention to its potential for social harm. He
observed that by using a server in the United States the appellants thought they had
found a way to circumvent English law. We regard the need to deter others as an
important element of sentencing in cases of this kind.
40.
Mr Davies submits that Sheppard’s sentence is manifestly excessive when measured
against the sentences passed on El Faisal [2004] EWCA Crim 343 (12 months ) and
more particularly Abu Hamza [2006] EWCA Crim 2918 (21 months). It is trite to say
no two cases are the same.
41.
The judge having presided over the two trials was well placed to assess the criminality
of each appellant. That said, however, the point that has most impressed us is that
there is no evidence of how many people saw the material or of the consequences of
their having seen it, although we do know that there was several thousand “hits” or
visits to heretical.com per day. There was no evidence of any individual having been
corrupted, albeit we appreciate such evidence would unlikely to be forthcoming.
Clearly a substantial sentence was called for in the case of Sheppard because he was a
repeat offender and the offences spanned a not inconsiderable period as well as being
repeated whilst on bail. In our judgment each of the constituent elements of
Sheppard’s sentence was amply justified but we think 4½ years in total was too long.
We think the right sentence would have been 3½ years and accordingly we grant
leave to appeal against sentence and we achieve that result by reducing the sentences
on counts 4 to 10 and 12 to 15 from 2½ years to 18 months. All the other sentences
will remain as before. As to Whittle, his involvement was less than that of Sheppard
and over a shorter period. He had no previous convictions. On the other had he was
the “brains” behind the construction of the offensive material which he fed to
Sheppard. We grant leave in his case too and the concurrent sentences of 2 years will