England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Wednesday, 27 February 2008

1. MR JUSTICE COULSON: On 4th December 2007, at the Crown Court at Birmingham, the appellant pleaded guilty to two counts of perverting the course of justice. He was sentenced by His Honour Judge Ross to nine months' imprisonment in respect of each count to be served consecutively. He was also disqualified from driving for 12 months. He appeals against that sentence with the leave of the single judge.
2. The facts of the two offences were these. On 13th December 2006 the appellant was stopped by police driving a Mitsubishi Jeep. He did not have any documents with him and when asked for his details gave those of his brother. He later attended the police station and gave a different address. Thereafter a summons was issued in his brother's name. The brother contacted the police and explained that he had not been driving the vehicle at the time. The appellant's brother was advised to contact a solicitor; that did not happen and he was duly convicted in his absence. Thereafter the appellant's brother was advised to make a declaration in the Magistrates Court to have the conviction set aside.
3. The second offence occurred on 13th June 2007. The appellant was again stopped by police. It appears that at least on that occasion the police officer who stopped him thought that he was the appellant, namely Adrian Richard Snow. However, the appellant gave his details as being a man called Foster. The appellant was arrested and when interviewed he made full and frank admissions. He pleaded guilty at the earliest opportunity.
4. When he sentenced the appellant the learned judge said this:

"In relation to the first, the aggravating features are that there was a real individual involved, an individual who was prosecuted, an individual who was convicted. He may, that being your brother, may have buried his head in the sand but on the other hand I suspect he thought, not unreasonably in my view, that you would do the right thing and go and admit what you had done, but you deliberately chose not to do that. You persisted in this course of conduct, and it is a very serious matter that the consequences of that offence went as far as they did. They are aggravating features.

The same aggravating features are not present in relation to the second matter, but what is aggravating about that is that it is a second matter, demonstrating, again, a persistent course of conduct. You, obviously, have never been troubled when driving on these occasions by the niceties of the road traffic laws. There is a reason why you are supposed to have a driving licence and why you are supposed to have insurance. You know that full well. These were both very deliberate attempts to avoid being prosecuted for serious road traffic matters. I do not accept for one moment the presence of your children in the car meant that you had to lie in such a well constructed and, in my view, quite a premeditated way."

5. We are in no doubt that these were serious offences. Perverting the course of justice is invariably a grave matter because it strikes at the root of the criminal justice system. As was noted by this court in R v Mitchell [2003] 1 Cr.App.R (S) 97, important factors going to the seriousness of the particular offence are: sub-para (1) the length of time during which the deception continued; sub-para (2) the nature of the deception; sub-para (3) the success of the deception.
6. In the present case we consider that, because the appellant was prepared to lie and sustain that lie such that in the end his brother was convicted of an offence that he did not commit, he could not have expected to be treated with anything other than the utmost severity by the court. For those reasons we consider there can be no serious argument but that the appellant had to be sent to prison for each offence. The offences were entirely separate offences, so they had to be dealt with by way of consecutive terms of imprisonment. Appearing before us this morning on behalf of the appellant, Miss Bailey very properly conceded both of those two points.
7. That just leaves the question of length of sentence. Miss Bailey's helpful written advice identified a number of cases which were decisions of this court in respect of similar offences. Those were R v Reid (1992) 13 Cr.App.R (S) 593; R v Tranter (1992) 13 Cr.App.R (S) 515; R v Flaherty (1994) 15 Cr.App.R (S) 179; and R v Johnson [1998] 1 Cr.App.R 169. In those cases the sentences imposed ranged from two to four months' imprisonment.
8. However, it is right to note that there are a number of more recent decisions of this court which, in our view, are of greater relevance to the present case. Those include R v Corcoran [2006] 1 Cr.App.R (S) where a defendant who failed a breath test and gave his sister's husband's name was given a period of 12 months' imprisonment on a guilty plea, and R v Johnson [2006] 2 Cr.App.R (S) where again on a guilty plea, an appellant received a sentence of 12 months' imprisonment for falsely claiming to be the driver of a car involved in an accident so as to shield the real perpetrator.
9. Accordingly, on count 1, bearing in mind the nature and length of the deception as well as its outcome, we conclude that the nine month term of imprisonment imposed was entirely reasonable and in accordance with those cases. Therefore there can be no grounds for disturbing that sentence.
10. In relation to count 2, in the course of his careful sentencing remarks, which we have cited, the learned judge said that count 2 was not in the same category because it did not have the same aggravating features. We respectfully agree with that. Furthermore, although we acknowledge that this was a second offence coming shortly after the first, it does seem to us that the facts of that second offence are significantly less grave than the first, and we accept that the arresting officer was not deceived by the appellant's attempt to give a false name.
11. In those circumstances, looked at in the round, we consider that an appropriate sentence for the second count would be one of three months. That would make a total period of imprisonment of one year. We consider that an overall sentence of one year properly reflects the appellant's criminality. Accordingly, for those reasons we do not allow any appeal against the sentence on count 1, but we do allow the appeal against the sentence on count 2, and we substitute the period of nine months with a period of three months. That gives a total of 12 months' imprisonment. To that extent only this appeal is allowed.