Jordan McSweeney v R

When fixing a minimum term for murder under Sentencing Act 2020, the court must begin with the applicable Schedule 21 starting point and then assess aggravating and mitigating matters without double counting. Planning of a sexual assault may materially aggravate a resulting murder even where the murder itself was not premeditated.

Mental or physical suffering is an additional aggravating feature only where there is reliable evidence of suffering beyond that inherent in a sexually motivated murder. Mental disorder reduces culpability only where it has a sufficient connection with the offending. A substantial uplift from the 30-year starting point must remain proportionate to the particularly high seriousness already reflected by that starting point.

The appellant pleaded guilty to the murder of Zara Aleena and to sexual assault contrary to section 3(1) of the Sexual Offences Act 2003. He had followed several women before attacking Ms Aleena, sexually assaulting her and inflicting fatal violence.

At the Central Criminal Court, Cheema-Grubb J imposed life imprisonment with a 38-year minimum term after allowing five years’ credit for the guilty plea. The appellant renewed his application for leave to appeal sentence, contending that the pre-credit minimum term of 43 years was manifestly excessive. The central issue was whether the judge had correctly assessed the statutory aggravating and mitigating factors and the appropriate uplift from the 30-year Schedule 21 starting point.

1. Appeal allowed. The court quashed the 38-year minimum term for murder and substituted a minimum term of 33 years. The life sentence, concurrent sentence for sexual assault, and other elements of sentence remained unchanged, subject to correction of the victim surcharge.
2. Under section 322 and Schedule 21 of the Sentencing Act 2020, the agreed starting point was 30 years because this was a murder involving sexual conduct and was therefore particularly high in seriousness. The court had to consider further aggravation and mitigation only to the extent not already reflected in that starting point.
3. The judge was entitled to treat the appellant’s extensive planning and premeditation of a violent sexual assault as a significant aggravating factor. Planning relevant to Schedule 21 is not confined to the murder itself: R v Minto [2014] EWCA Crim 297 supported that approach. The court also accepted that the appellant was prepared to kill if necessary to complete the assault and avoid consequences.
4. However, the judge was not entitled to find inordinate suffering as an additional aggravating feature. Ms Aleena had been rendered unconscious early in the attack. There was no sufficiently compelling evidence that she regained consciousness, or otherwise suffered beyond the terror and pain inherent in the early stages of this sexually motivated murder. The judge’s inferences about the purpose of taking the telephone and the appellant’s expectation of recall to prison also lacked an adequate evidential basis.
5. The appellant’s lack of convictions for serious violence or sexual offending was neutral in light of reliable evidence of violent propensity. His ADHD, mental health difficulties and background did not materially reduce culpability because the evidence did not establish a sufficient connection with this planned and instrumental offending. Genuine remorse was not available as mitigation.
6. A 13-year uplift from the 30-year starting point was disproportionate. The court applied the observation in R v Stewart [2022] EWCA Crim 1063 that a finite term of 30 years or more is already very severe. No more than 38 years before guilty-plea credit was justified. Retaining the five-year credit produced the substituted 33-year minimum term.

• Court of Appeal (Criminal Division) — Allowed the sentence appeal in [2023] EWCA Crim 1250. It quashed the 38-year minimum term and substituted 33 years.
• Central Criminal Court — Cheema-Grubb J sentenced the appellant following guilty pleas to murder and sexual assault. The appellant received life imprisonment with a 38-year minimum term after guilty-plea credit, and four years’ imprisonment concurrently for sexual assault.