Fernandez: Re-asserting Judicial Discretion in Culpability Assessment for “Causing Death by Careless Driving while Under the Influence”

Introduction

Fernandez, R. v ([2025] EWCA Crim 907) is a Court of Appeal (Criminal Division) decision arising from a Solicitor-General’s application to refer a Crown Court sentence for “causing death by careless driving while under the influence of drink or drugs” as unduly lenient under s.36 Criminal Justice Act 1988. The respondent, Mr Jehrone Fernandez, had received 4 years’ imprisonment (after a 10 % guilty-plea discount) following his plea to the offence.

The Solicitor-General argued that the trial judge wrongly (1) placed the driving in Culpability Category B rather than Category A under the Sentencing Council’s 2023 offence-specific guideline, and (2) failed adequately to weigh two aggravating factors: a prior drink-driving conviction (2015) and the fact that the deceased, Mrs Carol Smith, was a vulnerable road user (pedestrian).

The Court of Appeal, however, refused leave to refer, concluding that the sentencing judge’s approach fell well within the proper exercise of discretion. The judgment therefore crystallises a significant ratio: where speed marginally above the limit and a late amber-to-red light breach are present, a sentencing judge is entitled, on the facts, to treat the driving as Category B rather than Category A, notwithstanding a positive but low-level drug reading and a fatal collision with a pedestrian.

Summary of the Judgment

Issue 1 – Culpability classification: Was the offending properly categorised as Culpability A (near-dangerous driving / extreme example of a B-factor) or as Culpability B (speed inappropriate for conditions)?
Issue 2 – Aggravation: Did the judge wrongly ignore the prior drink-driving conviction and the vulnerability of the deceased?

The Court held:

The trial judge was entitled on the CCTV and expert evidence to find that the driving, though serious, was “speed inappropriate for the prevailing conditions” rather than “just below dangerous driving”. Hence Category B was permissible and correct.
The judge had expressly noted both aggravating features and balanced them against substantial mitigation (remorse, PTSD symptoms, low-level metabolite indicative of no impairment, positive character evidence, and a guilty plea).
Starting at 4½ years (within the Category B range of 4-9 years) and discounting 10 % for plea produced 4 years, which could not be characterised as unduly lenient.
Leave to refer was therefore refused.

Analysis

Precedents Cited & Contextual Authorities

The judgment itself cites no formal earlier cases by name, yet it relies on a well-trodden body of Court of Appeal authority relating to:

Attorney-General’s/ Solicitor-General’s References — e.g. Attorney-General’s Reference (No 4 of 1989) [1990] 1 WLR 41, affirming the “unduly lenient” test: the sentence must fall outside the range which a judge, applying his mind to the relevant factors, could reasonably consider appropriate.
“Goodyear indications” — from R v Goodyear [2005] EWCA Crim 888, governing advance sentence indications and the consequent credit on plea (here 10 %).
Sentencing Council Guideline (2023 version) for “Causing death by driving: Unlawful act of drink or drug driving / careless driving under the influence” – operative since 1 July 2023, which introduced the four-tier culpability structure (A – D) and defined aggravating/mitigating factors.

These foundational authorities supplied the legal framework within which the court assessed whether the sentencing judge had erred.

Legal Reasoning of the Court

Binary Factual Question – Category A or B
• CCTV showed Fernandez approached a 30 mph junction at 42-44 mph, accelerated through amber/red to ~49 mph, and struck the pedestrian. • The guideline lists, under Category B, “driving at a speed that is inappropriate for the prevailing road or weather conditions”.
• Category A, by contrast, demands driving “just short of dangerous driving” or an “extreme example” of a B-factor.
• The Court emphasised that eyewitnesses did not describe an obviously dangerous swerve or prolonged erratic driving; thus, “speed-plus-amber-light” did not compel a Category A finding. Discretion lay with the trial judge.
Aggravation/Mitigation Balance
• Prior conviction: A known aggravator, but nine years old. The judge mentioned it explicitly.
• Vulnerable road user: Inherent when a pedestrian is struck; again expressly recognised.
• Mitigation: Genuine remorse, PTSD, supportive references, low-range benzoylecgonine (no impairment), early guilty plea.
• The court found no imbalance amounting to legal error.
Unduly Lenient Test Applied
A sentence is “unduly lenient” only if it falls outside the reasonable range. Because 4½ years lay squarely within the guideline’s 4-9 year bracket (before plea discount), the threshold was not met.

Impact of the Decision

Culpability Calibration: Trial judges retain wide margin to distinguish between Category A and Category B even where (a) speed exceeds the limit by c. 50 %, (b) an amber/red light is breached, and (c) death results, so long as there is no additional element edging into dangerous driving.
Drug Metabolite Evidence: Confirms that low-level benzoylecgonine readings (below impairment threshold) may mitigate rather than aggravate, notwithstanding statutory zero-tolerance limits.
ULE References: Signals that the Court will not readily re-characterise guideline-compliant sentences as unduly lenient where the judge has evidenced a balanced assessment.
Practical Sentencing: Advocates and judges should focus on the qualitative nature of driving, not merely quantitative speed or presence of metabolites, when allocating culpability tiers.

Complex Concepts Simplified

Unduly Lenient Reference (ULR): The Solicitor-General (or Attorney-General) may ask the Court of Appeal to increase a Crown Court sentence if it is “unduly lenient”. The question is not whether the Court might have imposed more, but whether the original sentence was outside the range a reasonable judge could impose.
Culpability Categories (A–D): The Sentencing Council’s guideline ranks the seriousness of the driver’s conduct, from A (most blameworthy) to D (least). Category A usually leads to markedly higher starting points.
Goodyear Indication: A judge may, on request, indicate the maximum sentence that would be imposed on an early guilty plea. If given, the defendant who then pleads guilty receives that stated sentence (subject to the indicated discount).
Benzoylecgonine (BZE): A chemical left in the body after cocaine breaks down. BZE itself does not impair driving, but English law sets a “zero-tolerance” limit (50 µg/L). Levels over 500 µg/L may indicate lingering cocaine effects.

Conclusion

Fernandez re-affirms that the classification of culpability under the death-by-careless-driving guideline is a fact-sensitive judgment committed to the sentencing judge. Even significant speeding, a light-signal breach, and a tragic fatality will not automatically elevate an offence to Category A if the overall driving falls short of dangerousness and there is mitigating context (e.g., no drug-related impairment).

For practitioners, the case underscores the need to: (1) marshal precise factual evidence (CCTV, expert reports) to inform culpability arguments; (2) appreciate that historical convictions and victim vulnerability must be balanced rather than mechanically escalated; and (3) recognise the high bar before the appellate court will interfere with a guideline-compliant sentence as “unduly lenient”. Ultimately, the decision strengthens the principle that sentencing discretion, when transparently and conscientiously exercised, will be upheld, preserving consistency yet allowing space for judicial nuance in tragic driving-death cases.