R v Tunney

MR JUSTICE STANLEY BURNTON: On 9th January 2006 at York Crown Court before His Honour Judge Hoffman and a jury, the appellant pleaded guilty to doing acts intending to pervert the course of justice. On 4th April 2006 he was sentenced by His Honour Judge Hoffman to three years' imprisonment. He had originally been jointly charged with his son, Monty. On 4th April 2006 a count of making a false written statement had been added to the indictment in respect of Monty Tunney only. He pleaded guilty to that offence and received a two year conditional discharge. The Crown offered no evidence against him in respect of count 1 of which the appellant was convicted. The appellant now appeals against his sentence by leave of the single judge.

The facts of the case were that at approximately 11.20 am on 20th August 2005, a Mr Michael Boffey was knocked down and run over as he tried to prevent the theft of his Land Rover Defender vehicle from his farm in Warwickshire. The man responsible for the killing of Mr Boffey, one Ashley Squires, was later convicted of his manslaughter on 3rd January 2006 before Warwick Crown Court. He received a sentence of 12 years' imprisonment.

Mr Squires had been seen in a number of different parts of Warwickshire and Leicestershire both before and after the time of the killing of Mr Boffey. He was arrested on 7th September 2005 and in a written statement made through his solicitor he volunteered Monty Tunney, the son of the appellant, as an alibi witness. However, the telephone number given by Mr Squires for Monty Tunney was in fact that of the appellant. The appellant was informed of the murder investigation implicating Mr Squires and that Monty Tunney's details had been provided by Mr Squires. The appellant agreed to speak to the police and informed them that he was in York. He attended the police station on 9th September 2005 and provided a witness statement indicating that he remembered the events of 20th August 2005. He stated that on that day, Mr Squires had been working with him and his son Monty in the York area. In addition he said that Mr Squires had spent the previous night with them at a caravan site in James Street in York. He also stated that Mr Squires was working with them for the whole of Saturday morning from 8.30am onwards.

On 12th September 2005, Monty Tunney attended the police station and provided a similar written statement. Later the same day both Monty Tunney and the appellant were arrested and interviewed by the police. Both maintained that the evidence given in their statements was accurate to the best of their knowledge and belief, despite the police informing them that they had evidence from the Warwickshire inquiry which suggested strongly that Mr Squires had been present in Warwickshire until at least 11.20 am on the Saturday morning.

On 20th October 2005 both the Tunneys were interviewed again. In the course of these interviews they said that on reflection they were both of the view that it was nearer to midday to 1 pm on 20th August 2005 when they first met with Mr Squires, but they maintained that he had worked with them during the afternoon.

In the interim, the police had made enquiries at an address list supplied by the appellant and had confirmed that the appellant's company had been carrying out gardening work in the Acomb area of York at the relevant time. Customers of the firm failed to recognise pictures of Mr Squires having been one of the people carrying out the work and some stated that he had definitely not been present that afternoon. Despite this, the appellant persisted in asserting that Mr Squires had been present.

The judge in sentencing the appellant referred to the fact that he was previously lightly convicted and indeed his last conviction had been some eight years previously. He therefore did not take those previous convictions into account. Some credit was given for a late guilty plea. The offence was, however, very serious and therefore the sentence passed was appropriate.

The grounds of appeal are that the sentence as a whole is excessive having regard to the lack of criminal record of the appellant, his guilty plea, the fact that he was a hard-working family man with family responsibilities, that the false alibi had not resulted in the arrest or the charge of any innocent person, it had not been believed, ultimately the appellant did not persist in it and he had not served a prison sentence before.

In his admirably concise submissions, Mr Bradshaw has effectively repeated the case set out in his advice, namely that looking at the matter as a whole and looking at previous authorities this sentence was out of line and excessive. Reliance is placed on the case of Evans in which a sentence of two years' imprisonment was reduced to 12 months.

In our judgment the sentence which is appropriate for offences of this nature depends effectively on three matters. Two of those were referred to by the judgment of this court in Rayworth [2004] 1 Cr.App.R (S) 75 in which two-and-a-half years were upheld on a plea for perverting the course of justice. The particular factors which the court must have regard to are, first, the seriousness of the substantive offence to which the perverting of the course of justice relates. Here the offence in question, murder/manslaughter, was at the most serious end of the spectrum. The second matter which the court must have regard to is the degree of persistence in the conduct in question by the offender. Here there was a degree of persistence, although ultimately the appellant ceased to persist in his lies. Thirdly, one must consider the effect of the attempt to pervert the course of justice on the course of justice itself. Here it was unsuccessful. Nonetheless, the substantive offence of murder or manslaughter could scarcely have been more serious.

In our judgment this sentence was excessive but it does not fall to be reduced to the extent for which Mr Bradshaw submits. In our judgment the appropriate sentence in this case, having regard to the substantive offence and the fact that the false alibi was repeated and persisted in over a period by the appellant, is one of two-and-a-half years' imprisonment. Accordingly, the sentence passed will be quashed and replaced by a sentence of two-and-a-half years' imprisonment. To that extent this appeal succeeds.