R v Nicholas McMurray

For an offender convicted on or after 1 December 2020, qualifying electronically monitored curfew must be credited under Sentencing Act 2020, section 325. The credit period is calculated by dividing the qualifying curfew days by two and rounding up. Where the credit was missed at sentence but is established on a renewed application, the Court of Appeal may grant leave and vary the sentence to give the statutory deduction. In sentencing sexual offences, a victim may be particularly vulnerable where the offender abused a position of authority, control and trust.

Nicholas McMurray was convicted at Swansea Crown Court on 5 February 2025 of assault by penetration and sexual assault, contrary to sections 2 and 3 of the Sexual Offences Act 2003. On 28 February 2025 he was sentenced to seven years’ imprisonment. A single judge refused leave to appeal against sentence on the ground that the sentencing judge had wrongly treated the complainant as particularly vulnerable.

On renewal, the applicant advanced a further ground. He contended that 249 days spent on qualifying electronically monitored curfew before sentence should have been credited under section 325 of the Sentencing Act 2020. The central issues were the vulnerability assessment and the statutory curfew credit.

The renewed application was granted in part. The court upheld the refusal of leave on the challenge to the finding that the complainant was particularly vulnerable, but granted leave on the curfew-credit issue and varied the sentence.

1. Vulnerability. The applicant’s role as onboard train manager placed him in a position of authority and control over the environment. His conduct was also a gross breach of trust. Rather than being someone to whom the complainant could turn, he was the person who subjected her to unwarranted sexual touching. Those circumstances supported the sentencing judge’s assessment that she was particularly vulnerable.
2. Statutory credit. Section 325 of the Sentencing Act 2020 requires the court, for offenders convicted on or after 1 December 2020, to direct that the credit period counts as time served. The credit period is the number of days of qualifying curfew divided by two and rounded up to the nearest whole number.
3. Application and order. The prosecution confirmed that the applicant had been subject to qualifying electronically monitored curfew for 249 days. Applying the statutory formula produced a credit of 125 days. The court therefore directed that the seven-year sentence imposed on 28 February 2025 be treated as subject to a deduction of 125 days. A representation order was also granted.

• Court of Appeal (Criminal Division): On the renewed application, the court upheld the refusal of leave on the vulnerability ground, granted leave on the statutory curfew-credit ground, and varied the sentence.
• Court of Appeal (Criminal Division), single judge: Refused leave to appeal against sentence on the challenge to the finding that the complainant was particularly vulnerable.
• Crown Court at Swansea: Convicted the applicant on 5 February 2025 and sentenced him on 28 February 2025 to seven years’ imprisonment.