No. 2007/02321/A3
Neutral Citation Number: [2007] EWCA Crim 1658
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Friday  22  June  2007

B e f o r e:

LORD  JUSTICE  PILL

MR  JUSTICE  CALVERT-SMITH

and

MR  JUSTICE  LLOYD-JONES

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R E G I N A

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KEVIN  CHARLES  BURNEY

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MR T CHAIZE appeared on behalf of THE APPELLANT

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J U D G M E N T

LORD JUSTICE PILL:  
1.  On 19 March 2007, in the Crown Court at Maidstone, the appellant Kevin Burney (43 years of age) pleaded guilty to perverting the course of justice.  On 19 April 2007, he was sentenced by His Honour Judge Pitman to twelve months' imprisonment.  He appeals against sentence by leave of the single judge.  
 
2.  The co-accused, Jamie Burney (23 years of age), who is the son of the appellant, also pleaded guilty to perverting the course of justice.  He was sentenced to a term of eight months' imprisonment suspended for 18 months.  There was a requirement that he do 120 hours' unpaid work.  
 
3.  The offence was committed on the evening of 3/4 September 2006.  Jamie Burney drove the appellant to a public house near Faversham, Kent, which was not far from where they lived.  They left at around midnight.  Both had drunk substantial amounts of beer, the appellant more than his son.  Jamie wanted to wait before driving the short distance to their home to allow the effects of the alcohol to pass, but the appellant told his son not to wait and encouraged him to drive.  
 
4.  The journey involved going on to the main A2 trunk road.  The vehicle was driven slightly on to that road and was struck by a passing lorry.  The car was badly damaged.  The lorry driver stopped, whereupon Jamie apologised.  The lorry driver reassured him, saying "Don't worry, there's no damage to my lorry, but your car is a mess, isn't it?"  The appellant told Jamie not to apologise because the lorry driver was over the white line.  There can be no suggestion but that Mr Fenton, the lorry driver, was travelling along the A2 trunk road in an entirely proper manner.  Mr Fenton said that if there was a dispute about the cause of the accident he would call the police.  At the encouragement of the appellant, Jamie and the appellant ran across the fields to their home which was not far away, abandoning the badly damaged car.  The appellant told his son to say that he, the appellant, had been driving.  His purpose in doing so was to protect his son from getting into any trouble as a result of the accident.  
 
5.  The police attended the scene at the request of the lorry driver shortly afterwards.  They were rapidly able to trace the appellant and Jamie from the number plate of the car.  They arrived at their home at about 2am.  The appellant said that he was the driver and offered a roadside breath test.  He provided a breath specimen with a reading twice over the legal limit.  The lorry driver had told the police, correctly, that it was Jamie who had been driving.  
 
6.  At 8.15am Jamie provided a statement saying that it was his father who had been driving.  When the appellant was interviewed he, too, claimed that he had been driving.  Later, the same day Jamie was again interviewed and responsibly, notwithstanding his father's attitude, he confessed that he had lied in his first statement and that he had been driving.  

7.  The appellant was re-interviewed.  When told that his son had confessed he said that his son was a fool and maintained that he had been driving.  There the matter stood until 8 September 2006.  On that day the appellant went back to the police station because problems had arisen about the storage of the car.  He was interviewed again.  When asked who was driving he said, "I'm not going to comment no more on that one".  However, the police persisted and when asked, "Whose idea was it to say that you were driving?" the appellant answered "Mine", thereby admitting the deception which had until then been practised by him.  Jamie had resiled from the deception at an early stage and within 24 hours of the accident.  
 
8.  The appellant is of previous good character.  
 
9.  When sentencing him, the judge stated that he had made a number of serious mistakes in the course of the events.  The judge commented on the fact that Jamie Burney very quickly decided that he could not live with a lie and within the day told the police that it had been a lie.  In interview he owned up that all the time it had been him driving.  
 
10.  On behalf of the appellant Mr Chaize submits that the sentence was too long in the circumstance, having regard to the appellant's previous good character and guilty plea.  He accepts that there was a degree of persistence which exceeded in time the period during which he had been under the influence of drink and had persuaded his son to drive.  Mr Chaize has referred us to authorities including R v Howells and Thomas (1990) 12 Cr App R(S) 130 and R v Reid (1992) 13 Cr App R(S) 513.  There are other cases, as he accepts, and which the court has considered, where longer sentences have been imposed for offences of this kind.  
 
11.  Notwithstanding the good character and guilty plea, the seriousness of this offence was necessarily marked by a sentence of imprisonment.  A father's wish to protect his son is understandable, and we accept that that was the appellant's motive in making the extraordinary decisions he did on that night.  He had persuaded his son to drive and he wished to avoid the possible consequences of that for the son.  However, he persisted in the deception for several days, even though his son had at an early stage thought better of it.  The deception included leaving the scene of the accident, leaving the car in a damaged condition and thereby making it necessary for the police in the early hours of the morning to attend to the matter.  That conduct persisted until a visit to the police station, which was for a different reason, when the appellant in effect confessed in reply to what counsel classifies as a "trick question" (although counsel is not criticising the police for that).  They had an unusual situation to deal with and clearly had the strongest suspicion that they had been victims of a deception.  
 
12.  We have regard to the particular facts.  We consider them in the light of the authorities.  We acknowledge the seriousness of the offence and the fact that this was not a case where there was an early coming to senses, but where there was a persistent course of conduct designed to further the deception as what had happened. 
 
13.  However, we have come to the conclusion that the sentence was too long in the circumstances.  Having regard to the factors we have set out, and having regard to Mr Chaize's submissions, we quash the sentence of twelve months' imprisonment and substitute for it a sentence of six months' imprisonment which, in our judgment, sufficiently marks the seriousness of this conduct.  To that extent this appeal is allowed.  

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