A Reference by His Majesty’s Solicitor General under Section 36 of the Criminal Justice Act 1988: Luis Fernando Balcazar Soto & Anor

Where Parliament substantially increases the maximum sentence, a sentencing court must give effect to that change. For Level 1 causing-death-by-dangerous-driving offences, the existing guideline remains the structured framework, but a court may depart from its former range where justice requires it. The assessment remains individual and proportionate. It is not a mathematical uplift.

The maximum sentence is not reserved for a hypothetical case that no actual offending could equal. A sentence is unduly lenient only where it was not reasonably open to the sentencing judge; an appellate court must not substitute its own assessment. Pending revised guidance, sentencing at lower guideline levels should not be increased by judicial intervention alone.

The Solicitor General made two unrelated references under section 36 of the Criminal Justice Act 1988. Each concerned a sentence for causing death by dangerous driving after the maximum penalty had been raised from 14 years’ imprisonment to life imprisonment.

Luis Balcazar-Soto pleaded guilty at Southwark Crown Court after driving while over the alcohol limit, at substantial speed in a 30 mph urban area, colliding with a stationary rickshaw, killing one passenger and seriously injuring its driver. He received a total of nine years and nine months’ imprisonment, including an activated suspended sentence.

Malcolm Waite pleaded guilty at Norwich Crown Court after, while severely intoxicated, driving onto a pavement, killing a pedestrian and narrowly avoiding serious injury to her companion. He received eight years’ imprisonment. The common issue was the effect of the increased maximum penalty on sentencing under an existing guideline formulated on the former maximum.

Decision

1. The Court granted leave to refer Balcazar-Soto’s sentence, held it unduly lenient, and substituted a sentence of 12 years’ imprisonment for causing death by dangerous driving. With the consecutive activated suspended sentence, the total became 12 years and nine months. It refused leave to refer Waite’s sentence.

2. Section 86(2) of the Police, Crime, Sentencing and Courts Act 2022 required sentencing courts to take account of the life maximum for offences committed after 28 June 2022. Applying Richardson and others [2006] EWCA Crim 3186 and Nugent [2021] EWCA Crim 1835, the Court held that a Level 1 offence may require a sentence outside the former guideline range. The guideline nevertheless remained the appropriate structured framework pending replacement guidance. The court should use its Level 1 starting point, assess seriousness and culpability, and then adjust the sentence where the interests of justice require it. Proportionality remained necessary.

3. The Court accepted that it was not for it to reset guideline starting points or to increase sentences for lower levels of offending before the Sentencing Council had completed its work. In the most serious cases, however, the statutory change had particular significance. Following Brown [2018] EWCA Crim 1775, the life maximum was not reserved for an imaginary worse case.

4. Waite’s judge had properly increased the starting point from eight to 12 years to reflect the new maximum. Her evaluation of aggravating mitigation, including mental health, was open to her. The Court could not impermissibly substitute its own assessment.

5. Balcazar-Soto’s judge had not considered the increased maximum. His persistent dangerous driving, alcohol consumption, speed, serious injury to a second victim, poor driving record, lack of licence and conduct after the collision made a 16-year sentence before guilty-plea credit the least appropriate sentence. The Court also confirmed that release provisions do not affect the custodial term selected, although they affected the required driving-disqualification calculation.

• Court of Appeal (Criminal Division): On references by the Solicitor General under section 36 of the Criminal Justice Act 1988, the Court increased Balcazar-Soto’s sentence and refused leave to refer Waite’s sentence.

• Crown Court at Southwark: Balcazar-Soto pleaded guilty and, on 1 November 2022, received nine years’ imprisonment for causing death by dangerous driving, with a consecutive activated suspended sentence of nine months.

• Crown Court at Norwich: Waite pleaded guilty and, on 18 November 2022, received eight years’ imprisonment for causing death by dangerous driving.