R v Sam McGregor

This case concerns a conviction for an offence of rape. The provisions of the Sexual Offences (Amendment) Act 1992 therefore apply. No material may appear in any publication during the lifetime of the victim which identifies or tends to identify her as the victim of this offence.

This is an application by His Majesty's Solicitor General for leave to refer a sentence to this court under section 36 of the Criminal Justice Act 1988 on the grounds that it was unduly lenient and that it should be increased by this court exercising that power.

The offender was convicted by the jury after a trial at the Inner London Crown Court of one count of rape. That verdict was returned on 24 January 2025. At a subsequent hearing on 15 April 2025, the trial judge, His Honour Judge Kelleher, sentenced the offender to a term of 4 years and 6 months' imprisonment. Other consequential orders and consequences followed which it is unnecessary to set out here.

The offender is now 34 years old, having been born on 4 November 1991. In May 2021 he and the victim (to whom we will simply refer as ‘the victim’ or ‘V’) found themselves, with others, on a night out in Clapham. The offender had joined the group late in the evening. Everyone else including the victim had been there since much earlier and had drunk significantly more alcohol than the offender did. Eventually they left the bars where they had spent the evening, and some returned to the victim's flat, which is not far away, in order to carry on drinking. After that had gone on for a while, the others in the group left the flat, leaving only the offender and the victim in the flat. The victim was by now very significantly affected by the alcohol which she had taken. She, it seems, passed out on the sofa and eventually found herself in bed. The offender had not in any way been invited to join her but did. While she was either asleep or incapacitated through drink, he raped her vaginally at a point when she was clearly unable to give any consent to that act.

The Solicitor General principally submits, through Ms Gemma White, who appears before us on her behalf, that the judge's sentence followed an error in identifying the appropriate category for selecting the relevant starting point and sentencing range in the Rape guideline. This concerns how the intoxicated condition of the victim should be treated for the purposes of assessing the harm caused by this offence. The Solicitor General also submits that in arriving at a final sentence below the starting point for the category of offence which the judge identified, he failed to make a sufficient allowance for the aggravating factors which were present and made too great a reduction for the mitigating factors.

The principal and first question for us to consider is how the judge approached the question of categorisation. We will start by summarising the terms of the relevant guideline.

Harm is capable of falling into three categories. The categories with which we are concerned in this case are either category 3, as selected by the judge, or category 2, which both counsel who appeared before the sentencing judge accepted was either actually or at least arguably the appropriate category. The way these two categories work in the guideline is that category 2 identifies a series of factors which, if present, should result in the case being placed in that category. If they are absent, then the case should be dealt with as a category 3 case.

The category 2 factors include a number of things which, if present, will be serious aggravating features of any offence of rape, including "abduction, prolonged detention, violence, uninvited entry into a home" and so on. The only one which is said to be present in the present case is this: "victim is particularly vulnerable due to personal circumstances".

There is no disagreement that for the purposes of culpability this case fell to be classified as a category B case. Again, the two relevant categories (culpability A and B) work in the same way. Culpability A has a list of factors which, if present, will escalate the case in seriousness so that it attracts that label. If they are absent, then it will fall into the less serious culpability B category. It is not suggested that any of those culpability A factors were present; in particular it is not suggested that this offence involved the "use of alcohol or drugs on the victim to facilitate the offence". The offender had not administered, either overtly or covertly, the alcohol which had caused the victim to become unaware of what was happening around her: she had taken that herself.

As a culpability B category 2 harm case, an offence of rape attracts a starting point of 8 years' imprisonment for an adult offender and a range of 7 to 9 years.

A culpability B category 3 harm case attracts a starting point of 5 years' custody with a range of 4 to 7 years.

In his sentencing remarks, when dealing with this issue, the judge, who it should be recalled was the trial judge, said this:

The judge then went on to record (as was the fact) that this offence had caused significant psychological harm to V, which she had set out in a victim personal statement which had been placed before the court. We also have read that. The consequences of this offence for her have undoubtedly been made harder to bear by the context in which it was committed. She explains in her victim personal statement that it has caused her serious personal and professional difficulties and those difficulties continued even after the very lengthy period which elapsed between the date of the offence and the date of sentence. The judge recorded all those facts and took them into account.

It is right at this point that we should recall one particular aspect of the facts of the case which is relevant to the decision which we have to take, and that is that the offender ejaculated during the course of the rape. Initially he had prevaricated about whether there had been any sexual activity between him and the victim while she was asleep. The finding of his semen and DNA in swabs taken from her after her complaint made that position untenable and he thereafter contended that what had occurred had happened with her consent.

We have heard helpful submissions both from Ms White on behalf of the Solicitor General and also from Ms Daly who appeared before the judge at the sentencing hearing although she had not conducted the trial on behalf of the offender. We are grateful to both of them for the help which they have given us.

There is a significant body of authority — by which we mean previous decisions of this court — about the proper application of the guideline factor from category 2 which is in issue here, namely vulnerability. It is necessary only to refer in outline to two of those cases although there are many more. In Attorney-General's Reference (R v BN) [2021] EWCA Crim 1250, the court was required to consider the application of that guideline factor in a case where the victims were asleep at the time of the offending against them. They were also particularly vulnerable because they were children. The observations of the court however were not limited to the facts of that particular case but are of wider application. The court concluded that a person who was asleep, perhaps particularly in their own bed, was in a condition whereby they were particularly vulnerable because they were not aware of what was happening to them, unable to protest or resist or to summon assistance. That conclusion was also reached in the later decision of R v Lister [2022] EWCA Crim 1560, and as we have said, the position is now well established.

With respect to the reasoning of the learned judge, it is in our judgment immaterial whether the offender played any part in taking the victim's clothes off and putting her to bed before he behaved as he did. There was no suggestion that she had been in any way particularly targeted or that there were any premeditation or any other aggravating preparatory acts which ought to increase the sentence. The only factor which was said to be relevant in this case was the fact that she was unconscious through intoxication or perhaps asleep and in either case had no idea what was happening to her. That factor, in our judgment, does not cease to operate to draw the case into category 2 for harm purposes simply because the victim might have put herself to bed. On the contrary, it continues to operate however she got there. We therefore consider that the judge did indeed make an identifiable error in classification which caused him to take the wrong starting point in sentencing this case of rape. In those circumstances we consider that we should correct that error by quashing his sentence and replacing it with a sentence which is based on the correct classification of this offence for the purposes of the guideline.

It follows from what we have already said that this case is a category B2 case. As we have said, that involves a starting point of 8 years and a range of 7 to 9 years. We consider that the category 2 factors of harm vary both between each other and in terms of the individual factors: that is to say, vulnerability due to personal circumstances varies as between different circumstances where it is properly found. A young or child victim could be imagined with communication difficulties who is therefore particularly vulnerable to attack and who is also less able to process the damaging psychological consequences of having been attacked thereafter. That would be a case where this guideline factor might increase the starting point within the range to reflect its potency. In this case the victim was an adult woman who did not have any vulnerabilities of any kind, apart from the fact that she had consumed a great deal of alcohol which had deprived her of her consciousness. That is not in any way to criticise her; she was not doing anything wrong or misbehaving in any way at all, and was not in any way to blame for the crime which was committed against her. The only purpose of making that observation is to describe the potency of the category 2 harm factor in this case and to contrast it with other cases where different considerations might apply. Category 2 harm is a high category of harm, and this reflects the harm done in this case.

In this case it seems to us that the appropriate adjustment to the starting point to reflect that factor, and the fact that there is here only one category 2 factor whereas in many cases there may be a mixture of factors, is from 8 years to 7 years. That is a sentence at the bottom of the relevant range.

In our judgment, having arrived at that point, there is no further adjustment to be made to reflect any aggravating factor. We consider that a sentence at the level of 7 years in these circumstances adequately comprehends the fact that the offender ejaculated during the offence. That is a fact-specific conclusion.

The next question which we need to consider is whether further adjustment to that 7-year sentence is required having regard to any mitigating factors which there are present here. The offender was convicted after a trial so no question of credit for any plea arises.

The two mitigating factors which we need to consider are: first of all, the offender's good character, and secondly, the delay which occurred between the offence and the conviction and sentence — a period of some 4 years.

Good character in this case means not only that the offender has no previous convictions, it also means that he has given service to the nation both in his role as a police officer, but also, for present purposes more significantly, having served a significant period of time in the Royal Marines, before being discharged as a result of having sustained an injury. That is a factor which he is entitled to rely on at this point, even though good character in the context of serious sexual offending is regarded as a factor of limited weight.

The passage of time following the offence is also something which increases the burden of the proceedings on the defendant, as indeed it does on everybody else who has been involved in a criminal case which is subsequently brought before the court and tried. Some regard should be had for those factors. That also, perhaps particularly in present circumstances, is a factor of limited traction. That is true not least because the delay here occurred because, as the jury found, the offender entered a false not guilty plea and a trial was required. The sentence is not increased in any way because he denied his guilt, but as has been previously said, neither is he entitled to any benefit which might flow from that conduct for reasons which we take to be obvious.

For all of those reasons, we consider that an adjustment from the sentence of 7 years is appropriate, but it should only be a modest one. Therefore the sentence which we will impose in place of the judge's sentence, which we quash, is a sentence of 6-and-a-half years (6 years and 6 months). All of the other orders which the judge made will stand, and that is therefore the outcome of this Reference.