R v Ross McCullam

A 30-year starting point for murder under Sentencing Code Schedule 21 paragraph 3(2)(e) is appropriate where the acts causing death are sexual in nature or are accompanied by sexual activity increasing the victim’s ordeal, the depravity of the murder, or both. The court must consider the nature and extent of the sexual activity and whether it was merely background or part of the murder. An appellate court should not disturb a trial judge’s evidential appraisal, particularly a finding that the evidence does not make the judge sure of a fact, unless the conclusion was not open. Preliminary consensual sexual activity and subsequent pornography or masturbation do not themselves require a finding of sexual conduct.

Following a trial at Leicester Crown Court, Ross McCullam was convicted of murdering Megan Newborough and sentenced to life imprisonment with a minimum term of 23 years, less time spent on remand. The Solicitor General considered the sentence unduly lenient and made an Attorney General’s reference under section 36 of the Criminal Justice Act 1988.

The reference was confined to whether the murder involved sexual conduct within paragraph 3(2)(e) of Schedule 21 to the Sentencing Code, which would have required a 30-year starting point. The central issue was whether the sentencing judge was entitled to find that the evidence did not make him sure that the murder involved sexual conduct.

Leave to refer refused. The reference was limited to the alleged failure to apply the 30-year starting point for a murder involving sexual conduct.

1. The court applied the principle in R v Walker [2007] EWCA Crim 2631, [2008] 2 Cr App R(S) 8. The relevant provision covers cases where the acts causing death are sexual in nature or are accompanied by sexual activity that increases the victim’s ordeal, the depravity of the murder, or both. Whether the provision applies depends on the nature and extent of the sexual activity and whether it merely formed the background to the murder or was part of the murder itself.
2. The court endorsed the principles stated in Attorney General’s References (R v Maynard-Ellis and Leesley) [2021] EWCA Crim 317. Evaluation of the factual and expert evidence is primarily for the trial judge who heard it. Appellate intervention is particularly difficult where the judge has found that the evidence did not make him sure of a fact. Intervention is available only where the conclusion was not open to the judge or a finding was required as a matter of law.
3. The parties had met intending consensual sexual activity and had made preliminary moves towards it, but that did not require a finding that the later murder involved sexual conduct. There was no evidence that the strangulation formed part of a sexual act, and no evidence of sexual activity beyond the limited preliminary conduct. The offender’s later access to pornography and masturbation had to be considered against evidence of a longstanding pornography addiction. The sentencing judge was entitled to conclude that this evidence did not make him sure of a sexual element in the murder.
4. The judge was entitled to use a 15-year starting point and increase the minimum term to 23 years. The aggravating features, including the victim’s terror and suffering, the domestic context, use of a knife, attempts to ensure death and concealment of the crime, greatly outweighed the mitigating features. No sentencing error was shown, so leave to refer was refused.

• Court of Appeal (Criminal Division): On the Attorney General’s reference under the Criminal Justice Act 1988, leave to refer the sentence as unduly lenient was refused: [2023] EWCA Crim 349.
• Crown Court at Leicester: Following conviction for murder, the offender was sentenced to life imprisonment with a minimum term of 23 years, less 493 days spent on remand.