Kirkwood, R. v [2005] EWCA Crim 3534

Case No 200504913/A5[2005] EWCA Crim 3534
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 21st December 2005
Strand
London, WC2
B E F O R E:
MR JUSTICE GRAY
MRS JUSTICE COX DBE
Between
R E G I N ACrown-v-
Between
JAMES KIRKWOOD
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR S KOLODYNSKI appeared for APPELLANT
J U D G M E N T(As Approved by the Court)
Crown copyright©
[1]MR JUSTICE GREY: On 15th July 2005 in the Crown Court at Birmingham the appellant James Kirkwood pleaded guilty to ten counts of possessing goods with a view to sale or distribution bearing a sign identical to or likely to be mistaken for a registered trade mark, two counts of possessing a video recording of unclassified work for the purpose of supply and finally to two further counts of possessing an article designed or adapted to make copies of a sign identical to or likely to be mistaken for a registered trade mark. On 18th August 2005 the appellant was sentenced by His Honour Judge Taylor to 30 months' concurrent on each of the first ten counts, to two years' imprisonment concurrent on the next two counts and to 30 months' imprisonment concurrent on the last two counts. The total sentence was, therefore, one of 30 months' imprisonment. 11 other similar counts were ordered to lie on the file on the usual terms.[2]The appellant now appeals that sentence with the leave of the single judge.[3]The facts of the offences were these. On 23rd December 2003 officers from Birmingham City Council Trading Standards Department, working with the police, raided the appellant's home. A large number of items, mainly CDs and DVDs, were seized. In total over 500 blank discs, approximately 50 hard CD or DVD covers and several hundred plastic CD covers and ten CD folders, containing roughly 100 CDs or DVDs each, were seized. The contents included films, games and music. Accompanying artwork had also been printed off for some of the discs. The counts on the indictment were sample counts reflecting samples of the material seized.[4]394 of the discs contained films. A sample of 40 were sent to the Federation Against Copyright Theft ("FACT") who confirmed that 32 of them were counterfeit copies infringing trade marks owned by Universal, Warner Brothers and Colombia. Those were counts 1, 3 and 4 on the indictment.[5]239 of the disks contained computer games. The Entertainment and Leisure Software Publishers Association confirmed that they were copies infringing its members' trade marks, including PlayStation and EA. Those were counts 6, 8 and 9 on the indictment.[6]1898 of the disks contained music. A sample of the music CDs was sent to the Mechanical Copyright Protection Society who confirmed that they were copies infringing trade marks belonging to its members. Those were counts 11, 12, 13 and 15 on the indictment.[7]A number of the titles of films seized were sent to the British Board of Film Classification who confirmed that 108 of the film titles had been not issued with classification certificates at the date of the raid. Some of the films were photographic in nature. Those were counts 19 and 22.[8]Three personal computers were also seized. All of them had copying facilities. Also seized was a stand alone DVD duplicator unit. Within it was a DVD and a recordable DVD which indicated that copying had taken place or was about to take place. The computers also had DVD ripping software installed which enabled the user to circumvent the copy protection device used on commercial DVDs. Those were the last two counts on the indictment, counts 23 and 24.[9]A number of files printed off the computers contained lists or images or titles of films, or music or games running to 2700 pages of exhibits. Those lists indicated that 400 film DVDs were for sale at £5 each, totalling £2,000. An expert assessed the notional loss to member companies at over £7,000. Another expert from the Mechanical Copyright Protection Society assessed the retail value of the music albums contained on five MP3 discs at over £1,000. There were in all 14,000 MP3 files. Roughly calculated, the retail value of the music on those files was £17,000. We should, however, make clear that those figures are based on high street retail prices.[10]It was difficult to assess over what period the offences occurred, but some of the music lists on the computers dated back to 2000 and some of them had been accessed in December 2003, as late as the morning of the raid.[11]There was a basis of plea in this case. The appellant pleaded guilty on the following basis:
"2(a) sale and distribution was not on an organised commercial basis. I did not sell any items at a stall (for example car boot stall) or at any formal market setting. I did not sell any items by way of postal orders/internet orders for films, games, music et cetera. I did not advertise. (b) the 'distribution' of such items was at first mainly to friends and family. (c) any 'sale' of such items was on an ad hoc basis where people approached me. Any proceeds were minimal and were spent on either the children or normal household items or other CDs et cetera. (d) my initial interest in collecting films, music and games was as a hobby in which I have been interested since a child. 3. When I distributed or sold the items as described above, I copied them."
[12]The appellant is a man of 42 years of age. He has a number of disparate previous convictions. Amongst the most recent offences is a conviction in 1995 for arson. It appears that the explanation for that offence may derive, at least in part, from the fact that the appellant sadly is a depressive. He is described in the pre-sentence report as an avid music and film buff with an absorbing interest in computers. He was at that time living alone, but we are told that he and his partner have now made up their differences. The appellant has been unable to work since 1987 owing to a slipped disc. The risk of reoffending in his case is assessed to be medium.[13]The author of the pre-sentence report suggested a community sentence. However Mr Kolodynski, who has appeared on behalf of the appellant and for whose submissions we are grateful, sensibly accepts that this case crosses the custody threshold. Mr Kolodynski identifies a number of mitigating factors in this case, including the early guilty plea, the absence of any previous convictions of a similar nature, the fact that proceeds from the venture were minimal, the fact that the commercial aspect of the offending was ad hoc and there was no direct marketing. In addition, Mr Kolodynski relies on the considerable length of time between the start of the investigation in December 2003 and the sentence hearing which did not take place until August 2005. It is submitted that this offending was borne out of an obsessive hobby rather than an organised fraudulent venture from the start.[14]In his written advice Mr Kolodynski referred us to three cases Ansari [2000] 1 Cr App R(S) 94, Gleeson [2002] 1 Cr App R(S) 112 and Passley [2004] 1 Cr App R(S) 70 and relies on the sentences which were imposed on in those cases, where, submits Mr Kolodynski, the enterprise was on a more commercial basis than in the present case.[15]In addition, Mr Kolodynski has referred us today to two further cases, firstly, the case of Gross [1996] 2 Cr App R(S) 189. That was a case where sentences totalling two years' imprisonment for making copies of video tapes on a commercial scale were reduced by this court to a total of 12 months. The facts in brief were that the appellant pleaded guilty to two counts of offences under the 1988 Copyright Design and Pattens Act and two counts of fraudulently using a trade mark contrary to the Trade Marks Act of 1938. Police officers executed a search warrant at the appellant's home and found 50 video record recorders and 971 tapes of which 753 contained copies of copyright works. He was sentenced to 18 months' imprisonment with six months' consecutive for similar offences. The appellant appealed and the sentence was reduced in the way we have indicated.[16]Mr Kolodynski draws attention to the scale of the offending in that case and to the fact that it appears that the pirated videos were produced in such a manner as to invite the inference that this was a professional operation carried out for profit. We accept that that is so. On the other hand, it appears from the judgment in that case that the offending, albeit on quite a large scale, was over a far briefer period than in the present case. There is no indication in the report of the extent of the profit made by the appellant there.[17]In addition, we have been referred this morning to the case of Lewis [1997] 1 Cr App R(S) 208. That was another case where the sentence of imprisonment was reduced in this court from 27 months to 12 months. The appellant had pleaded guilty to distributing infringing articles contrary to the 1988 Act. He had operated a computer bulletin which was used to exchange copyright computer games. Callers could download computer games on to the appellant's computer system and upload games from that system. Over a period of three months 934 games were downloaded and 592 were uploaded. The value of each game to the copyright owner was about £40. As we say, the sentence was reduced to one of 12 months. The judgment in the case suggests that the total value of the 990 games would have been about £90,000. On the other hand, as in the case of Gross, the offending was over a shorter period. However, it is right to note that the appellant in that case had a previous similar conviction.[18]As we have already said, we consider that a custodial sentence was necessary here. We say that largely because of the large scale of the infringing acts and the prolonged period over which the appellant was engaging in them. It has to be borne in mind in this class of case that pirating videos or DVDs or similar does inflict commercial damage on those who produce such material. We accept that this operation began as nothing more than a hobby for the appellant, but it plainly did develop into a commercial operation, albeit not a particularly profitable one. The profits are plainly less than in Ansari and Gleeson, although broadly comparable with the profit made by the appellant in Lewis. We believe that the appellant must have been well aware that what he was doing was unlawful.[19]However, in all the circumstances, and bearing in mind the various mitigating factors to which Mr Kolodynski has referred us, we have concluded that the sentence in this case was to a degree excessive. In our judgment, the proper custodial term in this case is one of 21 months. We, accordingly, quash the existing sentence of 30 months and substitute for it a sentence of 21 months. To that extent this appeal is allowed.