R v Jamie Moreno

Sentencing guideline categories must be selected by applying the ordinary meaning of the stated factors. A victim who is so intoxicated that she cannot walk properly or find her home, and is alone at night, may be particularly vulnerable because she is defenceless. That category 2 factor requires category 2B classification; overlap in sentencing ranges does not justify using category 3B.

A sentencing court must consider reliable evidence of psychological harm in a victim personal statement where the statement could not have been provided before a plea because the offender had denied the charge and the prosecution had been delayed. A guilty-plea reduction may exceed the usual first-day-of-trial maximum where the trial was unlikely to begin on that day. Double counting must be avoided, and totality requires the aggregate sentence to remain just and proportionate.

The Attorney General applied under s.36 of the Criminal Justice Act 1988 for leave to refer as unduly lenient a sentence imposed after guilty pleas to two counts of assault by penetration contrary to s.2 of the Sexual Offences Act 2003. The offender received 38 months’ imprisonment on count 1 and 30 months concurrently on count 2, consecutive to an existing 24-month sentence for separate sexual offences.

The reference challenged the classification of the offences as category 3B rather than 2B, the sentencing court’s refusal to consider the victim personal statement because it was provided after the pleas, and a 15 per cent guilty-plea reduction.

Disposition. Leave to refer was granted. The reference was allowed to the extent that the sentence was increased.

1. Victim personal statement. The sentencing judge was wrong to ignore evidence of the effect of the offending merely because the victim personal statement and supporting letter were provided after the guilty pleas. The material could not reasonably have been produced before the pleas because the offender had been pleading not guilty and there had been substantial delay in commencing and progressing the prosecution. The evidence showed real harm and extensive treatment.
2. Guideline categorisation. Sentencing guideline factors are interpreted according to the ordinary meaning of their words. A person who is so intoxicated that she cannot walk properly or find the street where she lives, and who is alone at night, is particularly vulnerable because she is defenceless. The court referred generally to R v Bunyan [2017] EWCA Crim 872 at paragraph 25 and R v Sepulvida-Gomez [2019] EWCA Crim 2174; [2020] 4 WLR 11. The vulnerability was not at the lower end. The offence was therefore category 2B, not category 3B. The overlap between the categories’ sentencing ranges did not justify selecting the lower category.
3. Other factors and double counting. The physical and psychological harm was not severe for guideline purposes. The evidence did not establish a prolonged detention or sustained incident. The attempts to force a hand into the victim’s vagina were reflected in the overall sentence rather than treated as a separate additional humiliation or degradation factor. The victim’s intoxication, having supported the category 2 vulnerability finding, was removed as a separate aggravating factor to avoid double counting.
4. Plea credit and totality. A 15 per cent reduction was permissible in the particular circumstances because industrial action, representation issues and the presence of the jury meant that the plea was unlikely to have been entered on the actual first day of trial. Separate offending against separate victims causing separate harm required consecutive sentences, but the aggregate sentence had to remain just and proportionate.
5. Order. The sentence on count 1 was increased from 38 months to 60 months. The 30-month sentence on count 2 remained concurrent. The increased sentence was consecutive to the existing 24-month sentence, producing an overall sentence of seven years.

• Court of Appeal (Criminal Division): granted leave for the Attorney General’s reference and allowed it to the extent that the sentence on count 1 was increased from 38 months to 60 months.