R v Nicholas McMurray

The provisions of the Sexual Offences (Amendment) Act 1992 apply. No matter likely to identify the complainant shall be published during their lifetime, and we do not identify the complainant in this case.

This is the renewed application of Nicholas McMurray (who is aged 38) for leave to appeal against sentence following conviction at the Crown Court at Swansea before His Honour H. Rees on 5 February 2025 and sentenced on 28 February for offences of assault by penetration and sexual assault, contrary to sections 2 and 3 of the Sexual Offences Act 2003. The total sentence imposed was 7 years' imprisonment and a statutory surcharge was also imposed.

It is only necessary to deal with the facts briefly. On 22 June 2024 the applicant (then aged 38) was working as the onboard manager of a train travelling from Cardiff to Swansea. The complainant C (then aged 18) was a passenger travelling alone, having been out for a friend's birthday. Although she had consumed alcohol, she was not materially inebriated. C accidentally left the train at Neath, realised her mistake and reboarded, sitting in an area without other passengers nearby. The applicant approached C, pulled at her skirt whilst she was seated, and he then moved to the vestibule of the train. When C went into the vestibule to prepare to disembark, the applicant sexually assaulted her by touching her right breast, kissing her and digitally penetrating her vagina. C reported the assaults to British Transport Police at Swansea Station.

The applicant was of previous good character.

The single judge refused leave on the grounds compiled by counsel that the judge was wrong to consider the victim particularly vulnerable. We agree with that decision. Given the applicant's employment as the train manager, he was not only offending in gross breach of trust, but he was also in authority and in control of the environment on the train. Instead of being someone that C could turn to, he was the one who engaged in unwarranted sexual touching of her.

Through Ms Carpanini, the applicant seeks to advance a fresh ground of appeal, namely that he had spent time on qualifying electronically monitored curfew prior to sentence which should have been deducted from the custodial term pursuant to section 325 of the Sentencing Act 2020. It appears that this feature of his case was missed by counsel and the court. In any event, there is no reference to it in the sentencing remarks.

Section 325 of the Sentencing Act 2020 provides that for offenders convicted on or after 1 December 2020, the court must direct that the credit period (ie the number of days on which the offender was subject to qualifying curfew divided by two and rounded up to the nearest whole number) is to count as time served as part of the sentence. The prosecution has confirmed by email dated 6 October 2025 that indeed the applicant was subject to qualifying electronically monitored curfew for a total of 249 days prior to sentence. Applying the statutory formula, this results in a credit period of 125 days. We are satisfied that the applicant is entitled to have 125 days credited towards the custodial sentence imposed, in accordance with section 325. The sentence will be varied accordingly. We grant leave and direct that the sentence of 7 years' imprisonment imposed on 28 February 2025 shall be treated as to be served subject to a deduction of 125 days, representing the period spent on qualifying electronically monitored curfew.

Ms Carpanini has presented this renewed application at her own expense and without expectation of reward, but as we have granted leave, a representation order is also granted.