Michael James Young v R

When sentencing under offence-specific guidelines, the court must impose a sentence within the overall offence range. A seriousness category identifies the starting point but does not impose a separate requirement to sentence within that category range under the Sentencing Act 2020.

The court may move upwards within the overall range where the facts justify it, but must not then aggravate the sentence again by using the same factors. An attempted rape requires a downward adjustment where its uncompleted nature materially reduces its seriousness. An extended sentence remains available where the statutory significant-risk test is met and an extension is necessary for public protection.

In Michael James Young v R, [2024] EWCA Crim 251, the appellant appealed, with leave, against an extended sentence imposed for attempted rape. The related concurrent sentences for trespass with intent to commit a sexual offence and assault occasioning actual bodily harm were not challenged.

The offences arose after the appellant forced entry into his former partner’s home, assaulted her and attempted to rape her while their young child was present. The sentencing judge imposed an extended sentence of 17 years, comprising ten years’ custody and a seven-year extended licence period, after finding dangerousness.

The appeal raised whether the sentence for attempted rape was manifestly excessive, including the treatment of the sentencing guideline, the significance of the offence being an attempt, and the finding of dangerousness.

1. Appeal allowed. The original extended sentence of 17 years was manifestly excessive. It was quashed and replaced with an extended sentence of 15 years, comprising eight years’ custody and a seven-year extended licence period.

2. Having excluded the guideline’s enhanced harm factors for harm level 1, the appropriate framework was category 2B. Several harm level 2 factors were present: a sustained incident, violence and sexual touching, and forced entry into the victim’s home. The seriousness of the facts entitled the judge to move upwards to the level of a category 1B sentence.

3. Under sections 60(2) and 60(4) of the Sentencing Act 2020, the duty to follow a sentencing guideline requires a sentence within the overall offence range. The seriousness category identifies the starting point only. It does not create a separate duty to impose a sentence within that category range. However, the factors used to justify the upward movement could not also aggravate the sentence from the resulting starting point of 12 years to 13 years.

4. The sentencing judge also had to reflect that this was attempted, rather than completed, rape. Although sexual offending of this kind was gravely serious, the appellant had not exposed his penis and the incident had ended before the police arrived. A downward adjustment was therefore required. The proper sentence before credit for plea was ten years, reduced by 20% to eight years.

5. The dangerousness finding was upheld. The judge was entitled to rely on the pre-sentence assessment, the escalation in offending, previous convictions, and the continuing risk associated with drug addiction. He was also entitled to conclude that a restraining order and probation supervision alone did not provide sufficient protection. The seven-year extension period was a fact-specific assessment and could not be faulted.

6. The concurrent sentences and all other orders remained unchanged.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence and substituted an extended sentence of 15 years, comprising eight years’ custody and a seven-year extended licence period.
• Crown Court at Bristol: On 31 August 2023, imposed an extended sentence of 17 years for attempted rape, comprising ten years’ custody and a seven-year extended licence period, with concurrent sentences for the associated offences.