R v Jehrone Fernandez

LORD JUSTICE DINGEMANS: Introduction

1. This is the hearing of an application by His Majesty’s Solicitor General for leave to refer a sentence which the Solicitor General considers to be unduly lenient. On 31 March 2025, in the Crown Court at Bristol, the respondent, Jehrone Fernandez, who is a 35-year-old man, was sentenced to 4 years’ imprisonment for causing death by careless driving whilst under the influence of drink or drugs.

2. Mr Fernandez had pleaded guilty on the first day of trial. He had submitted a Goodyear application together with a basis of plea. He was therefore entitled to 10 per cent credit for his plea of guilty.

3. It is submitted by Ms Newcombe, on behalf of the Solicitor General, that the judge made an error, in the sense that this should have been categorised as culpability A offending for the purposes of the offence specific guideline, and that would have merited a starting point of 9 years’ custody with a categorised range of 6 to 12 years, rather than the 6 years starting point that the judge took with a category range of 4 to 9 years. The second submission is that the judge failed to take account of specific aggravating factors being a previous conviction for driving with excess alcohol in 2015 and the fact that the deceased was a vulnerable road user because she was a pedestrian.

4. It is submitted by Mr Hollingsworth, on behalf of Mr Fernandez, that this sentence was not unduly lenient. It was, he submits, correctly categorised as culpability B and, as far as mitigating and aggravating features were concerned, the judge took all relevant features into account and came to a sentence which was not in any sense lenient. The facts

5. So far as the facts are concerned, at approximately 5.30 am on 12 June 2023, Mr Fernandez was driving his Vauxhall Astra along Anton Bantock Way towards a traffic light controlled junction with Hareclive Road. The weather was fine and dry and the light was good, and we have had the opportunity of seeing CCTV coverage of the whole accident. The speed limit on Anton Bantock Way was 30 miles per hour and Mr Fernandez was driving at between 42 and 44 miles an hour as he was coming up to the traffic light controlled junction. On the left-hand side of Anton Bantock Way, just beyond the traffic light controlled junction, was a bus stop lay-by. At the same time the deceased, Mrs Carol Smith, was out for a morning jog. She was wearing a bright pink top and she walked down Hareclive Road towards the junction. She then stopped on the pavement next to the bus shelter at the bus stop. As she did so the traffic light at the junction for traffic moving along Anton Bantock Way turned from green to amber. Mrs Smith glanced to her right in the direction of the junction and from where Mr Fernandez and his car was coming from and then looked left and cars coming towards Mr Fernandez were braking and stopping for the traffic light. She broke into a jog and she crossed the bus stop lay-by and then started into the carriageway of Anton Bantock Way, intending to cross at a slight angle. Mr Fernandez was approximately 66.5 metres away from the traffic light stop line when the traffic light changed from green to amber. He had time to stop before the light went red but instead of stopping he accelerated and he was approximately 3 metres away from the stop line when the light changed from amber to red. By this time the car was travelling at what the expert evidence shows was between 48 and 50 miles an hour. When the car crossed the stop line the traffic light had been red simply for 0.16 of a second and the car continued through the junction. Mrs Smith stepped into the carriageway and she was struck by the front passenger side of Mr Fernandez’s car. She was thrown into the air by the impact and rendered unconscious. The car brake lights were activated 7 metres from the point of impact and the offender attempted to swerve away from Mrs Smith a yard or two before impact but without effect. It was common ground that had Mr Fernandez been driving at the speed limit, he might have been able to avoid Mrs Smith when she ran into the road.

6. Mr Fernandez stopped his car at the scene and went to offer his assistance to those assisting Mrs Smith. He was arrested and taken to a police station. At about 11.00 am that morning he provided a blood sample for analysis. The result was a reading of not less than 90 micrograms per litre of blood of benzoylecgonine, a metabolite of cocaine. The legal limit to drive is 50 micrograms per litre of blood.

7. There was expert evidence from the defence, which was accepted by the prosecution, which was to the effect that the BZE is an inactive metabolite of cocaine which exerts no effect but is a marker of prior cocaine use. The level of BZE deemed to be indicative of continued cocaine effects is 500 micrograms per litre of blood. The level at which it was found in the offender’s blood was therefore below the level at which there would be any expectation of impairment from cocaine use. The legal limit for BZE was set on a zero tolerance basis. In fact, Mr Fernandez’s case was that he had taken cocaine on the Friday evening, after work, he said, as a very irregular user and this was a Monday morning at the time of the accident.

8. Emergency Services attended the scene and Mrs Smith was taken to Southmead Hospital in Bristol. She had suffered traumatic brain injuries, a fractured skull, rib fractures and a collapsed lung. She was admitted to Intensive Care but never regained consciousness and she developed pneumonia and died on 13 August 2023. The sentence

9. Victim personal statements were read at the sentencing hearing from Mrs Smith’s husband, daughter and son. The devastating loss caused to the family was made plain by those statements.

10. The guidelines set out the relevant features in terms of culpability. The judge referred to those and then continued and said that the driving that day fell into the middle category (category B) because the speed at which Mr Fernandez was driving was inappropriate for the prevailing road conditions: “You were travelling about a third above the speed limit and the traffic lights ahead of you turned to amber.” The judge continued: “Instead of braking, as you could and should have done if you had been going within the speed limit, you did not simply carry on even at that higher speed than you should have been driving but accelerated up to something like 48 or 49 miles an hour by the time you were going through what turned out to be a red light as you shot through.”

11. The judge found that the sentencing was therefore within the guideline of 6 years’ imprisonment, with a range of 4 to 9 years. The judge found no aggravating features within the guideline, which he took into account, although the judge noted: “There was a previous conviction for driving over the limit, which is indicative of so the judge said you not paying serious attention that is required of anyone who potentially driving dangerous vehicles on the roads.”

12. The judge turned to mitigation. The judge referred to the fact that Mr Fernandez had expressed remorse, not only through his barrister, Mr Hollingsworth, who appeared below as well as before us, but in a letter which the judge then read out. The judge then referred to a psychology report that explained the post-traumatic stress disorder symptoms that had affected Mr Fernandez since the accident and the judge also referred to reading references from others about the impact of the prison sentence which was going to be imposed upon him and the judge noted that: “That includes the mother of your child, the student mental health worker who is involved in your son’s care whilst he is undertaking his studies, and the impact that the lack of your presence will undoubtedly severely have upon him, and the references of others who have spoken well of you and obviously the support of those who have come to court today.”

13. There was a pre-sentence report which the judge had from the Probation Service, which added additional information that helped the judge assess the sort of person that Mr Fernandez was and the likelihood that he (then being aged 34) was likely to be. The judge found that he was likely to throw himself back into life and become a worthwhile member of society in due course. The judge gave a 10 per cent discount for plea of guilty and then imposed the sentence of 4 years, being 4½ years before the final discount for guilty plea. This Reference

14. Turning then to the grounds on which the Solicitor General seeks leave to refer. The first is the standard of driving. We have all seen the CCTV. The question for the Court is whether this was: culpability A, within the standard of driving just below the threshold for dangerous driving and/or including an extreme example of a culpability B factor; or whether the judge was entitled, and right, to find the driving was solely at a speed that is inappropriate for prevailing road or weather conditions. As both Ms Newcombe and Mr Hollingsworth in their excellent oral submissions, for which we are grateful, recognise, the point is really a binary one. Ms Newcombe pointed to the fact of the speed and the amber light. Mr Hollingsworth pointed to the fact that eyewitnesses who were around at the time had not remarked on any element of near dangerous driving when describing the accident in their police statements to the police.

15. We should just deal with one point that Mr Hollingsworth made which was to the effect that in some way the basis of plea that had been advanced on behalf of Mr Fernandez before he pleaded guilty and which was accepted acted as some sort of bar to the judge finding that this was culpability A. We do not accept that. All that the basis of plea accepted was that the standard of driving fell below the threshold for dangerous driving and that therefore the offence was completed. Nothing was said about whether the driving fell just below the threshold for dangerous driving and one would not have expected to see that submission in the basis of plea.

16. Stepping back and looking at this carefully and reviewing all the angles on the CCTV, in our judgment, the judge was entitled to find as he did that this was driving at a speed that was inappropriate for the prevailing road or weather conditions and was not required to find that the standard of driving was just below the threshold for dangerous driving and/or included an extreme example of a culpability B factor. That was a permissible finding of fact on the CCTV evidence and, in our judgment, was a finding which was right.

17. We turn then to the next aspect of the Reference which is the effect of the previous conviction in 2015 and the fact that Mrs Smith was a vulnerable road user. It is apparent from reading the whole of the sentencing remarks that the judge had well in mind all the aggravating and mitigating features. The previous conviction was specifically mentioned and the judge described Mrs Smith’s movements just before the fatal impact, making it plain that she was a pedestrian. The judge had regard to all the mitigating factors, which included the fact that this is a Sentencing Guideline which, reflecting the will of Parliament, has a zero tolerance limit for any single drug above the legal limit, even if that leads to no impairment of the driving. The absence of impairment is something which may be taken into account, as was common ground, by way of mitigation under the offence specific guideline.

18. In our judgment, it is impossible to look at the judge’s careful sentencing remarks and find that his balance between aggravating and mitigating features or his final sentence of 4½ years before discount for plea of guilty was in any sense wrong.

19. We are conscious that this is an arid discussion about the application of an offence specific guideline to driving which had such appalling consequences for the family. This is not in any sense to undermine the tragedy that occurred on 12 June 2023 with the death of Mrs Smith and the effect on her family. We are very conscious that no sentence, however long, could equal the loss suffered by Mrs Smith and her family. However, for all the reasons that we have given, we refuse leave for the Reference. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400 Email: [email protected]