Miscellany of sentencing issues

Published date01 March 2021
Date01 March 2021
Subject MatterIn court
Category 1A. A sentence of nine-and-a-half years before credit for plea, though
‘firm’, was not manifestly excessive. As regards S., his sentence too had to reflect
the aggravating circumstances both of the crime and his record. Their appeals thus
R v MYLAN and SMITH, [2020] 2 Cr App R(S) 30.
Miscellany of sentencing issues
Racial hatred via social media: Severe sentence upheld
Aged in his late 30s, D. issued a late-night rant on Instagram against those who
resort to beheadings in pursuit of Islamic extremism, using grossly offensive lan-
guage against Muslims and Allah, accompanied by a photo of himself bare ches-
ted, holding a long-barrelled musket-type gun with his finger on the trigger. Though
this was posted on a protected account which in theory meant that distribution was
limited to a few hundred (394) people, and was removed within a day, his message
was capable of being disseminated to others and did get forwarded via WhatsApp
to a Muslim woman who recognised D., felt in fear and complained to the police.
On arrest D. acknowledged responsibility but denied holding racist views. He
attributed his actions to drunken stupidity, explaining that the firearm had been an
ornament on the wall at a friend’s house where the post had been issued, though he
declined to identify that friend or the location. On conviction following contested
trial of publishing material with intent to stir up racial hatred, when interviewed for a
PSR, D. continued to dispute any such intention, maintaining that he had been
heavily intoxicated, being a ‘functioning alcoholic’, and had not anticipated cir-
culation beyond his private Instagram account circle. His criminal record included
convictions for criminal damage, driving with excess alcohol and whilst disqualified
and failing to comply with a suspended sentence order.
On D.’s appeal against sentence of four years’ imprisonment it was argued on
his behalf that this term had been manifestly excessive in the circumstances, in the
absence of relevant prior convictions, this being his first immediate custodial
sentence. The Court of Appeal identified that sentencing for this kind of offence
should reflect:
the nature of the publication and the intent behind it (in this instance the
material was vile, grossly offensive and threatening, the content being com-
pounded by the accompanying menacing picture, a significant aggravating
the need to deter others from publishing material of this nature;
the number of people who saw the material (in this case being unknown but
the material had self-evidently had a wider circulation beyond the original
the consequences of individuals having viewed the publication (in this case
the only indication of impact was that a recipient had been left scared and
In court 127

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