Mays, R. v

In a reference alleging that a murder sentence was unduly lenient, the appellate court must respect the trial judge’s assessment of evidence where the statutory sentencing category depends on a factual finding proved to the criminal standard. A murder involving sexual or sadistic conduct may attract the higher starting point under Schedule 21 to the Sentencing Code, but the statutory examples are not exhaustive. Where the trial judge cannot be sure that such conduct or motivation was proved, the court may use the ordinary starting point and reflect body destruction and other serious features as aggravating factors. An appellate court should not interfere merely because the circumstances are shocking if the judge conscientiously applied the statutory scheme.

The Solicitor General referred the sentence imposed on Shane Mays under section 36 of the Criminal Justice Act 1988 as allegedly unduly lenient. Following his conviction for murdering Louise Smith, a 16-year-old girl, the Crown Court at Winchester imposed life imprisonment and set a minimum term of 25 years less time spent on remand.

The issue was whether the trial judge had selected the wrong starting point under Schedule 21 to the Sentencing Code. The reference contended that the murder was of particularly high seriousness and involved sexual or sadistic conduct, requiring a 30-year starting point. The court also considered whether the horrific treatment of the body required that higher starting point despite the judge’s inability to be sure that the conduct was sexual or sadistic.

1. Reference refused. The trial judge was entitled to set a 15-year starting point and increase it to a 25-year minimum term after weighing the aggravating and mitigating features.
2. Under Schedule 21 to the Sentencing Code, a murder of exceptionally high seriousness may attract a whole-life starting point, while a murder of particularly high seriousness ordinarily attracts a 30-year starting point. Other adult murders attract a 15-year starting point. The examples of particularly high seriousness, including murder involving sexual or sadistic conduct, are illustrative rather than exhaustive.
3. The alleged sexual or sadistic character of the conduct was a factual matter for the trial judge. She had to be sure of it to the criminal standard. She found that she could not be sure that the insertion of the branch, probably after death, was sexual or sadistic. The appellate court was not in a position to interfere with that assessment.
4. The destruction or defilement of the body could properly be treated as aggravating features within the statutory sentencing scheme. The judge was entitled to give those matters substantial weight, alongside the victim’s vulnerability, the abuse of trust and the suffering inflicted.
5. The trial judge had conscientiously assessed the evidence, applied the criminal standard and followed the statutory scheme. The Court of Appeal was unable to say that the sentence was unduly lenient. Permission for the reference was therefore refused.

• Crown Court at Winchester: Following conviction on 8 December 2020, the offender was sentenced on 9 December 2020 to life imprisonment with a minimum term of 25 years less time spent on remand.
• Court of Appeal (Criminal Division): The reference under section 36 of the Criminal Justice Act 1988 was refused. The court held that the sentence was not shown to be unduly lenient.