McMorris & Ors, R. v

Definitive sentencing guidelines must be considered, but they are not rigid. A sentencing judge may impose a more or less severe sentence where the circumstances require it, provided reasons are given.

Sentencing for group sexual offending must reflect its coercive and exploitative character, the victim’s degradation and the role of each offender. Prior agreement to private intercourse does not mitigate subsequent non-consensual group sexual activity. An offender must not be sentenced for separate criminal conduct in which he did not participate.

The court heard three Attorney General’s References alleging undue leniency in sentences imposed on McMorris, Brew and Muaimba for offences arising from the repeated rape of a 16-year-old girl by a group of young men. McMorris also caused catastrophic burns by throwing caustic soda over her.

It also heard sentence appeals by Raymond and Denton, who, with others associated with a gang, kidnapped, falsely imprisoned and repeatedly orally raped a 14-year-old girl. Denton received detention for public protection and Raymond an extended sentence.

The central issues were whether the first group’s sentences were unduly lenient and whether the severe sentences imposed on the two young appellants were manifestly excessive.

1. The court granted leave on the Attorney General’s References. It held that the sentences imposed on McMorris and Brew were unduly lenient. McMorris’s total sentence was increased from nine to 14 years’ detention, comprising concurrent terms of 11 years for rape and a consecutive term of three years for causing grievous bodily harm. Brew’s sentence was increased from six to nine years’ detention.

2. Although the sentencing judge had considered the definitive guideline, that did not preclude a finding of undue leniency. A court must have regard to definitive guidelines under the Criminal Justice Act 2003, but must ultimately do justice in the individual case. Sentencing for sexual offending requires flexibility; a case need not fit rigidly within a guideline category.

3. The offences were exceptionally serious. The victim’s earlier agreement to private intercourse with McMorris did not reduce the gravity of her subsequent ordeal in an empty house surrounded by men. The group or gang setting was coercive and exploitative. The prolonged attack, humiliation, filming or photographing, psychological damage and the failure to obtain medical help were material aggravating features. The victim’s attainment of age 16 did not itself determine the appropriate sentencing level.

4. The court nevertheless preserved individual responsibility. Brew and Muaimba could not be sentenced for the caustic-soda assault because they did not participate in it. McMorris’s acquittal under section 18 of the Offences against the Persons Act 1861 had to be honoured, despite the catastrophic harm resulting from the section 20 offence. Muaimba’s sentence should arguably have been longer, but the court declined to interfere because any increase would have been small and his role differed materially.

5. Raymond’s and Denton’s sentence appeals were dismissed. The court endorsed the sentencing judge’s dangerousness findings and her assessment of the grave, gang-motivated and degrading nature of the offending. Their youth, guilty pleas and personal mitigation had been properly considered, but did not make the extended or indeterminate sentences excessive. The separate notification-order issue was left for determination after another pending case.

• Court of Appeal (Criminal Division): In [2009] EWCA Crim 1490, the court increased McMorris’s and Brew’s sentences, declined to increase Muaimba’s sentence, and dismissed Raymond’s and Denton’s appeals against sentence.

• Wood Green Crown Court: McMorris, Brew and Muaimba were convicted after trial and sentenced for rape offences; McMorris was also convicted under section 20 of the Offences against the Persons Act 1861.

• Crown Court: Raymond and Denton pleaded guilty to kidnap, rape and false imprisonment. Raymond received an extended sentence and Denton detention for public protection.