R v Fabio Calaca Santos

Committal 47CC1821025

Driving a motor vehicle with a proportion of a specified controlled drug above the specified limit, contrary to s.5A (hereafter ‘drug driving’): 1 month imprisonment.

Drug driving: 1 month imprisonment, concurrent.

Committal 45RB1175925

Drug driving: 2 months imprisonment, concurrent.

Committal CZ1ZIGWCQB

Drug driving: 3 months imprisonment, concurrent.

Committal 43SW0772725

Dangerous driving, contrary to s.2: 20 months imprisonment, concurrent.

Driving whilst disqualified, contrary to s.103(1)(b): No separate penalty.

Driving without insurance, contrary to s.143: No separate penalty.

Driving whilst unfit through drugs, contrary to s.4(1): No separate penalty.

The appellant was duly disqualified from driving for a period, to which we will return.

With the leave of the single judge, the appellant contends that the sentence of imprisonment was wrong in principle and manifestly excessive.

These offences were committed on 30 July 2025. First, in the early hours of that day the Brighton police received reports of a Skoda driving at high speeds in the marina area. They found that vehicle in a McDonald’s car park. The appellant was the driver and had two passengers. Having collected their food, the appellant drove the wrong way down the one-way system in the car park and then drove at speeds in excess of 50 mph in a 30 mph zone. When police stopped the car they noted that his pupils were dilated and that he was struggling to stay awake. He tested positive for cocaine. On a further test at the police station, his blood was found to have 109 micrograms of cocaine per litre (exceeding the 10 micrograms limit) and 800 micrograms of benzoylecgonine per litre (exceeding the 15 micrograms limit).

On the same day (30 July 2025), following his release by Brighton police in the early hours of the morning, the appellant at about 1 pm was involved in a traffic collision on the M23 when driving a VW Polo, a hire car. When Surrey police officers arrived, he was not displaying any signs of obvious impairment at the side of the road. However a roadside drug swipe test showed a positive test for cocaine. After being taken into custody a blood sample showed cocaine but not in excess of the legal limit. However the level of benzoylecgonine was 282 mcg per litre.

On 24 September 2025, at about 8 a.m., officers were called to an incident where a BMW had crashed into some parked cars. On arrival, they saw the car in the middle of the road, with a damaged back windscreen. Two adjacent cars had been damaged in the collision. The appellant was seen leaning into the BMW and matched the description of the driver that had been given to the police. He appeared lethargic and was slurring his words. A bag found on him contained a crack pipe. Initial drug swipes were positive. Drugs were found on him, in addition to a large quantity of cash. A blood sample taken in custody showed a level of 800 micrograms of benzoylecgonine per litre.

On 21 November 2025, police officers on patrol in Reading saw a BMW that had failed to stop for officers earlier in the day and began to pursue it. The appellant was the driver. For a period in excess of 20 minutes, he attempted to evade the police. His driving involved significantly exceeding the road speed limits, including well in excess of 100 mph on the motorway; and various dangerous manoeuvres. These included swerving in and out of lanes; swerving to go off the motorway, but on seeing a police car then coming back across multiple lanes and the hatched area of the motorway, cutting in front of other vehicles. The police had to stop drivers on the motorway and create a safe area where they were able to use a stinger device to stop the appellant and box in his car. There was a pregnant woman in the passenger seat. The appellant again tested positive for cocaine.

The appellant had previous convictions for 14 offences between February 2017 and October 2018. These included theft, burglary, possession of a bladed article in a public place, threatening with a bladed article, attempted robbery, assault occasioning actual bodily harm and battery; but no drug or road traffic offences.

The PSR noted that the appellant had had a difficult childhood; that he had been using crack and heroin since the age of 16; but that he had then been clean for almost 7 years before a relapse triggered by a breakdown in his relationship with the mother of his two children and exclusion from the family home. He told the author of the report that he was sorry for what he had done and recognised the seriousness of the offences. He reluctantly accepted that it was only by a fine margin that nobody was seriously injured as a result of his mindless conduct. The author commented that, whilst the appellant could make good decisions, when under the influence of drugs he was reckless, impulsive and engaged in self-destructive behaviour. He was assessed as being a medium and increasing risk of harm to the public through offending when in such a state. The report concluded that a custodial sentence would be both appropriate and proportionate; but would not address the issues underpinning his offending behaviour and would only serve a limited purpose in the medium term. Conversely, the option of suspending a custodial term would be ‘wholly appropriate’. In the event of such an order, the suggested requirements included a drug rehabilitation requirement and a rehabilitation activity requirement. A DRR ‘would directly address the key issue underpinning his offending behaviour and represents the best opportunity for him to manage and reduce his risk of further conviction in the long term.’ A subsequent DRR assessment recorded that the appellant was willing and able to engage with mandated drug treatment and proposed a three month requirement.

In his sentencing remarks, the Recorder described the offending as a campaign of driving in very dangerous circumstances. He then took the dangerous driving offence as the lead offence. By reference to the relevant sentencing guideline, it was clearly culpability A, having regard to the multiple factors of deliberate decision to ignore the rules of the road; prolonged, persistent and deliberate course of dangerous driving; obviously highly dangerous manoeuvres; and an offence committed in the course of evading the police. The harm was in category 2. For the offence itself, this gave a starting point of 36 weeks custody and a category range from high level community order to 18 months custody. The aggravating factor of the offence was the carrying of the pregnant passenger and ‘the unacceptable standard of driving’.

The drug driving offences fell within the guideline category of lower culpability and greater harm, namely category 2. It was greater harm because of the two identified factors of obvious signs of impairment and evidence of an unacceptable standard of driving. For each offence this produced a guideline starting point of medium level community order; a range of low level to high level community order; and a disqualification period of 17-28 months. The Recorder noted the maximum sentence of 6 months for this offence and the aggravating factor of repeatedly committing the offence despite being stopped and warned.

Turning to the totality principle, the Recorder noted that the sentence for the lead offence had to reflect all of the offending behaviour, together with the aggravating and mitigating factors.

As to aggravating factors not related to the specific offences, the Recorder noted the appellant’s previous convictions but observed that these were perhaps marginal in the context of the subject offences. As to personal mitigation, he referred to the matters identified in the PSR.

The Recorder concluded that a custodial sentence had to be imposed; and that the appropriate overall sentence if found guilty after a trial in respect of all the offences would have been ‘something in the region of 30 months’.

The Recorder then structured the sentences so that the sentence for the lead offence of dangerous driving would encompass all the offending; and that the remaining sentences would be concurrent or have no separate penalty.

Thus, with full one-third credit for plea, the sentence on the lead offence was reduced from the Judge’s notional starting point of 30 months to a term of 20 months imprisonment. The remaining sentences were then as set out at the beginning of this judgment.

The Recorder then considered the question of suspending the sentence. He concluded that this was not appropriate, observing ‘There is simply too much to qualify you for a suspended sentence. This was a catalogue of horrendous driving in horrendous circumstances.’

On behalf of the appellant, Mr William Heath, does not challenge the Recorder’s description of the offending; nor the way in which he structured the sentencing, so as to encompass all the offending within the sentence for the lead offence of dangerous driving. However he submits that, in doing so, the Recorder was wrong to identify a notional sentence before credit for plea of 30 months.

First, this involved a manifestly excessive upward adjustment of 12 months from the top of the A2 category range (18 months) to 30 months. As to aggravating factors, the Recorder was right to identify the carrying of a pregnant passenger; but wrong to give any weight to ‘unacceptable driving’ or to his antecedents. Unacceptable driving was encompassed in the offence and its categorisation. The existence of old and irrelevant convictions was not an aggravating factor, even ‘marginally’. Conversely, the absence of relevant or recent convictions was a statutory mitigating factor and should have been so treated.

Secondly, and in any event, a pre-credit notional sentence of 30 months exceeded the maximum sentence for the offence of dangerous driving (2 years) and was an unlawful starting point before credit for plea. There would have been no basis for taking a starting point of 2 years, i.e. above the top of the category range, and it should have been substantially lower. In any event, with full credit for plea, a lawful sentence could not have exceeded 16 months.

The second ground of appeal is that the sentence, whether 20 months or lower, should have been suspended. Set against the guideline factors which may support suspension, the PSR and DRR assessment demonstrated a realistic prospect of rehabilitation in the community. Mr Heath pointed in particular to the observations in the PSR as to the limited purpose in the medium term of an immediate custodial sentence; and to the DRR as the ‘best opportunity’ for the long term reduction in the risk of reconviction.

Such a disposal was further supported by the appellant’s success in being clean from drugs for a period of 7 years until the relapse which followed the end of his most important relationship.

Mr Heath submitted that the Recorder had not properly taken account of the definitive guideline on the imposition of community and custodial sentences and its identified factors for and against the suspension of a custodial sentence. His brief remarks on the point were to the effect that the seriousness of the offences meant that appropriate punishment could only be achieved by immediate custody. However that factor had already been taken into account when determining the length of the overall sentence. Furthermore the Recorder did not consider the guideline factors which may make it appropriate to suspend the sentence. In particular he did not address the evidence from the PSR and DRR which supported a realistic prospect of rehabilitation in the community and a lower risk of reoffending or harm in the medium term if the sentence were suspended rather than immediate. Nor did he take account of the appellant’s strong personal mitigation relating to his difficult background and upbringing; and his 7 years of being clean from drugs and not offending. Further, by the date of sentence he had already served some 82 days in custody, which constituted a significant punitive element.

We start with the submission that it was wrong in principle for the Recorder to identify the notional appropriate sentence, before credit for plea, at a level which exceeded the maximum sentence for the offence in question. In R v Carroll (1995) 16 Cr. App. R. (S.) 488, the appellant pleaded guilty to the offence of aggravated vehicle-taking which had a maximum sentence of two years imprisonment or detention; and to related offences of driving whilst disqualified, driving without insurance and criminal damage. He was sentenced to a term of two years detention for the offence of aggravated vehicle-taking, with concurrent terms for driving whilst disqualified and criminal damage; and no separate penalty for driving without insurance. The appellant argued that it was wrong in principle to impose the maximum sentence for aggravated vehicle taking following a guilty plea. In his sentencing remarks, the recorder observed that some might say that the two-year maximum was far too little for such an offence.

In allowing the appeal, this Court duly observed that sentencers must loyally abide by the maximum sentence which Parliament has provided. It continued: ‘If by those words the learned recorder was intending to indicate that his and the justices’ view of the maximum permissible sentence was such that they intended to impose that sentence without any regard either for the circumstances in the case or for any discounts to which the defendant would reasonably be expected to be entitled, then we have to say that such an approach was wrong in principle. Moreover, the maximum sentence for any offence for which such maximum is specified by law should be reserved for the most serious offences of that kind…while any appropriate discount for, for example, a plea of guilty, for the recovery of property through the assistance of a defendant, or for subsequent cooperation with the police, should be made from a level of sentence which is itself commensurate with the seriousness of that offence within the range established by the relevant statute.’ The Court observed that, although the appellant had little option but to admit his guilt of these offences which occurred ‘under the eyes of several police officers’, he was entitled to the appropriate credit for doing so. In reducing the sentence to 18 months detention, the Court concluded ‘that to impose the maximum sentence after a plea of guilty even on a case of aggravated vehicle taking of this kind led to a sentence which was excessive.’ Whilst this is not clear from the report, we infer from the level of reduction in the sentence, that the appropriate discount in that case was 25%.

In our judgment, two points stand out from this decision. First, this was a case where the offence of aggravated vehicle-taking was in effect treated as the lead offence, the sentencing for which encompassed all the offending. Secondly, we understand the Court to have held that it was wrong in principle to identify a pre-credit notional sentence which exceeded the maximum sentence for the offence in question.

We accept that this reasoning applies to the present case. Regardless of the fact that the sentence on the lead offence of dangerous driving was to encompass all the offending, the notional sentence before credit for plea should not have exceeded two years in any event.

However, that is not the end of the matter. If and to the extent that the Recorder’s overall notional sentence before credit for plea was appropriate, it would be open to this Court to restructure the sentences so as to produce the same result. We therefore turn to consider totality.

The appellant’s offending involved repeatedly driving in very dangerous circumstances. He learned nothing from being stopped by police and found to have cocaine in his blood. He simply carried on. Thus on 30 July 2025, having tested positive for cocaine in the early hours of the morning, he was stopped later in the day, at another location and in a different car, and again tested positive. This did not deter him, because on 24 September 2025 he was driving yet another car and crashed it into two parked cars. He tested positive for benzoylecgonine, a biproduct of cocaine. This conduct was repeated yet again on 21 November 2025 when he was involved in highly dangerous driving on and about the motorway and was only stopped by the police after a substantial chase and the use of a stinger. On this occasion the associated offences were driving whilst unfit through drugs; whilst disqualified; and without insurance.

In considering the Recorder’s overall pre-credit notional sentence of 30 months for this concatenation of repeated dangerous motor offences, we accept that it was wrong to treat ‘unacceptable driving’ as an aggravating factor. That was already encompassed within the facts of each offence. Conversely, we do not consider there was any error in giving some ‘marginal’ weight to the appellant’s previous convictions. In any event, these were very minor aspects of the sentencing decision. Further, we are satisfied that the Recorder gave sufficient weight to the appellant’s personal mitigation and remorse. All in all, this overall offending fully merited the Recorder’s notional overall pre-credit sentence of 30 months imprisonment; and hence the post-credit sentence of 20 months.

For the reasons already given, we accept that it was wrong to structure the sentence in a way that imposed that sentence for the offence of dangerous driving. However, contrary to the appellant’s submissions, we consider that the Recorder would have been fully entitled to structure the sentences in a way that imposed a reduced sentence of 16 months for the dangerous driving; namely 2 years less full credit for plea. In order to achieve the overall sentence of 20 months, the Recorder would then have been entitled to order the sentence for dangerous driving to run consecutively to one or more of the sentences for the offences committed on the earlier occasions. In our judgment, the right course would be to increase the sentence for the fourth drug driving offence (committal ending WCQB) to 4 months; and to order a sentence of 16 months for dangerous driving to run consecutively thereto.

We turn to the issue of suspension. We agree that the Recorder’s remarks on this issue were too cursory and that he should have given express consideration to the definitive guideline for the Imposition of community and custodial sentences and to its specified factors for and against the suspension of the sentence; and then carried out the necessary balance. The only implicit reference to the guideline was to the factor that the seriousness of the offence can only be achieved by immediate custody. In the absence of further reasons, it is to be inferred that he thought either that the potential factors pointing to suspension were absent or that they did not outweigh offending which was so serious as to require immediate custody. We note that, elsewhere in his remarks, the Recorder took express account of the 82 days which the appellant had already spent on remand.

We must first reject the appellant’s submission that, having taken the gravity of the offending into account in the imposition of the sentence of imprisonment, the Recorder was not entitled to take this into account when considering suspension. As the guideline makes clear, he was bound to consider this factor. In our judgment, the seriousness of the appellant’s repeated dangerous offending, with its attendant risk of serious risk of serious harm to the public, compelled the identification of this factor in favour of immediate custody.

We have then considered afresh the appellant’s renewed submission that there were factors in favour of suspension which should have prevailed. As to the prospects of rehabilitation in the community and the degree of future risk of offending, we accept that the PSR, together with the recommendation of the DRR assessment, offered some room for hope. We conclude that some limited weight should have been given to this. We also take account of the personal mitigation, albeit would not describe it as ‘strong’.

Balancing all these matters, we are satisfied that the gravity of this offending and the associated need for immediate custody outweighed the factors which might make it appropriate to suspend the sentence.

Accordingly, the appeal will be allowed only to the extent of restructuring the sentences so that:

All other sentences are unchanged. However in consequence of the restructuring of the sentences, it is necessary also to revise the structuring (but again not the total) of the period of disqualification from driving. In respect of the offence of dangerous driving, the Recorder imposed a disqualification period totalling 46 months, namely 36 months plus an extension period of 10 months to reflect one-half of the 20-month term of imprisonment for that offence. In the light of the restructuring of the sentences, and pursuant to ss.35A and 35B Road Traffic Offenders Act, that disqualification period of 46 months must now be comprised as: 36 months + 8 months extension period + 2 months uplift. Insofar as the Court record states that the total disqualification period is 48 months, it must be corrected to state 46 months. The concurrent disqualification periods of 12 months in respect of the drug driving offences are unchanged.

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