(vi) the appellant was not legally represented at the sentence hearing (nor in the
magistrates' court) and it was therefore possible that all the mitigating factors were
not presented to the court.
18.
In the course of this hearing Mr Lowe has helpfully and economically sought to
develop those arguments, but has concentrated his attention on the fifth of the points
that were raised in the grounds of appeal. In terms of the cases upon which reliance is
placed, we have been referred to R v Sheppard & Whittle [2010] EWCA Crim 65 and
also R v Bonehill-Paine [2016] EWCA Crim 980. In terms of the former case, that
involved two appellants who were convicted after a trial of a number of charges in
respect of their publishing racially inflammatory material. The offenders in that case
worked collaboratively to run a website on which they published grossly offensive
material directed to stirring up racial hatred towards various racial groups and most
particularly people described in the judgment as 'Jewish and black'. One particular
focus on the material was by way of denying the holocaust. The Court commented that
the point on appeal that impressed them most was the absence of evidence as how many
people saw the material or the consequences of them having seen it, although the Court
did identify that the site received several thousand hits per day. The Court commented
that there was no evidence of anyone being corrupted by the material although it was
recognised that evidence of that being the case was unlikely to be forthcoming.
Sheppard was referred to as a repeat offender, with offences spanning a not
inconsiderable period and with some being committed whilst on bail. Despite those
factors the Court concluded that a total sentence of 4 years 6 months was too long and
reduced the term to 3 years and 6 months. With regard to Whittle it was noted that his
involvement was for a shorter period, and that he was of previous good character. On
the other hand, however, he was said to be the 'brains' behind the website, feeding the
material to Sheppard for his co-defendant to post. The sentence imposed upon him was
reduced from 2 years to 18 months.
19.
The Court in Bonehill-Paine applied Sheppard and Whittle when considering a sentence
of 3 years 4 months imposed upon that appellant following a trial in respect of charges
of stirring up racial hatred. The offender in that case had published a post on his own
internet site urging people to attend what was referred to as an "anti-Jewification
event". The offender encouraged others to print and distribute a poster that was
designed to encourage racial hatred. He also posted material on Twitter and that in turn
was reposted by others. The anti-Jewish event that the appellant sought to promote did
take place but passed off peacefully, albeit in the context of a significant investment of
time and resources by the police. The appellant had prior relevant convictions, one of
which involved him publishing false messages claiming that a public house would not
serve servicemen for fear of antagonising the local Muslim population. On another
occasion the appellant published material that falsely asserted certain political
opponents were paedophiles.
20.
The Court identified the following factors as being relevant:
(i) the nature of the publication and the intent behind it;
SMITH BERNAL WORDWAVE