England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2

1. LORD JUSTICE PILL: On 27th June 2005 in the Crown Court at Cardiff, Barrie Corcoran pleaded guilty to doing an act tending or intended to pervert the course of justice. On 25th July he was sentenced by His Honour Judge Richards to 18 months' imprisonment and disqualified from driving for three-and-a-half years. He appeals against sentence by leave of the single judge.
2. Shortly after 10.00 pm on 28th November 2003, police officers saw the appellant driving a Honda motorcar at speed along Gladstone Road in Barry. It did not have its lights illuminated. It collided with a motorcar being driven into Gladstone Road from another street. Officers went to assist and found the two drivers. The appellant had a serious injury to his forehead and was bleeding heavily. They realised, while giving him first aid, that he was unsteady on his feet, his speech was slurred and he smelt of drink. He failed a roadside breath test and was arrested on suspicion of having driven with excess alcohol. When asked for his details he gave the details of Stephen Pell, his brother-in-law, his sister's husband. He was taken to hospital for treatment and again gave the particulars of his brother-in-law. A blood sample showed 134 milligrammes of alcohol in 100 millilitres of blood, which is substantially above the legal limit of 80 milligrams. He made remarks indicating that he had no licence or insurance. We are told today that while he had no insurance he claims to have had a licence. He was informed that he would be reported for dangerous driving, driving without a licence, driving without insurance and with excess alcohol in his blood.
3. The summons was received by his brother-in-law who attended the Magistrates Court in March 2004 and said that it was not him who had been stopped. He gave the appellant's name and provided a photograph so that an officer in court was able to confirm that the person in the photograph was the person involved in the offence. The appellant's sister told the police that the appellant was 'on the run' as he knew the police were looking for him. He gave up his work and moved house to avoid arrest. He was finally arrested several months later in July of 2004. When arrested he denied being involved in the accident but a DNA sample was taken which matched the blood sample taken at the hospital where he had been treated.
4. When sentencing the appellant, the judge referred to the personal difficulties of the appellant whose marriage had apparently been breaking up. The judge concluded:

"I am quite satisfied that you behaved particularly badly and committed a very serious offence."

The judge went on to say:

"It seems to me that if you had given your true identity and you had pleaded guilty to dangerous driving and driving with excess alcohol the court would have been likely, even on the basis of a plea of guilty, to have sent you to prison for something in the order of 12 months and possibly eight months for the dangerous driving and four months for the driving with excess alcohol, given your previous record."

5. The appellant is 28 years of age. He does indeed have a bad record. It includes one offence in 1998 of driving with excess alcohol for which he was fined and disqualified for a period of 15 months. His offences include offences of robbery in 1995, burglary and theft of a dwelling, more recently burglary of a dwelling-house with intent to steal, arson and offences of theft and handling, the most recent of which were not long before the offence with which this court is concerned.
6. On behalf of the appellant, Miss Gibbon submits that the sentence was too long in the circumstances. She refers to the guilty plea and to the changed circumstances of the appellant who has, she submits, started a new life. We have been supplied with two references to indicate his present circumstances.
7. In the skeleton argument reference is made to authorities where much shorter sentences have been imposed for this offence. Moreover, submits Miss Gibbon, the judge should not have made the reference he did to a punishment for dangerous driving. The appellant could have been charged with that offence, it being an either-way offence to which the time limit attaching to the other offences did not apply, and she submits the judge should not have appeared to sentence on the basis of an offence with which the appellant had not been charged. Many of the cases involving this offence are cases where the substantive offence has been charged along with the present offence.
8. There are other cases where the sentence of the court has been significantly longer than the present one. In R v Wake [1999] 2 Cr.App.R (S) 403, following a motoring offence, an attempt was made to cover up what had happened. It is right to say that the motoring offence in that case was a good deal more serious than in the present case in that it involved the death of two elderly pedestrians. However, in that case just over 24 hours later the appellant, as this court put it, "did make a clean breast of it. He has since been seriously affected by remorse both for the accident and the cover up." The appellant in that case had previous convictions but had not previously served a custodial sentence. While the appeal against sentence was allowed the sentence substituted was one of two years' imprisonment.
9. In R v Melender [2003] 2 Cr.App.R (S) 63 an attempt was made to avoid responsibility for a motor accident in which the victim died. The court referred to the case of Wake and again allowed an appeal against sentence. Nevertheless the appropriate sentence in that case, upon conviction, was held to be one of 30 months' imprisonment. That was a case where the defendant drank after the accident to frustrate the breath test procedure.
10. We do, however, consider that there is substance in the submission that the learned judge ought not to have appeared to sentence for an offence with which the appellant had not been charged. The conduct of the appellant, which he endeavoured to conceal, was serious conduct in that it involved not only a potential driving offence but driving with excess alcohol and without insurance. The judge should not, however, have attempted to sentence for those other offences as he appeared to do from the remarks to which we have referred. He should have considered the seriousness of the offence charged and leave no impression that he was sentencing for other offences. We have regard to that, to the plea of guilty and to the other mitigating factors upon which counsel has relied. In our judgment the sentence imposed was excessive in the circumstances. However, for the reasons we have given, in particular the persistence of the deception, we do not consider that it can be reduced to the extent which counsel urges upon us. The sentence of 18 months' imprisonment will be quashed and there will be substituted for it a sentence of 12 months' imprisonment. To that extent this appeal is allowed.