R v Sam McGregor

For rape sentencing, a victim who is asleep or unconscious through intoxication and unable to understand, protest or resist may be particularly vulnerable for category 2 harm. That remains so where the victim consumed the alcohol herself or put herself to bed, regardless of whether the offender caused the incapacitation or assisted in preparing her for bed. Harm and culpability must be assessed separately. Within category 2, sentence must reflect the potency and combination of the factors present. Good character and delay may justify modest mitigation, but carry limited weight in serious sexual offending, especially where delay is linked to a false not guilty plea and resulting trial.

The offender was convicted of rape at the Inner London Crown Court on 24 January 2025 and sentenced on 15 April 2025 to four years and six months’ imprisonment. The Solicitor General referred the sentence under section 36 of the Criminal Justice Act 1988, alleging that it was unduly lenient.

The reference concerned the correct application of the Rape sentencing guideline. The central issue was whether the victim’s severe intoxication, unconsciousness and inability to consent constituted particular vulnerability for category 2 harm, despite uncertainty about how she came to be in bed and the fact that she had consumed the alcohol herself. The court also considered aggravating and mitigating adjustments.

1. Reference allowed. The sentence of four years and six months was quashed and replaced with six years and six months’ imprisonment. The other orders made by the sentencing judge remained in force.
2. The guideline’s harm and culpability classifications operate separately. The absence of a culpability A factor, including administering alcohol or drugs to facilitate the offence, meant that the offence was culpability B. The relevant harm classification was category 2 if the victim was particularly vulnerable due to personal circumstances; otherwise it would have been category 3.
3. Following Attorney-General’s Reference (R v BN) [2021] EWCA Crim 1250 and R v Lister [2022] EWCA Crim 1560, a person who is asleep or unconscious is particularly vulnerable because they are unaware of what is happening and unable to protest, resist or summon assistance. That vulnerability does not cease because the victim may have put herself to bed or because the offender did not assist in undressing or putting her to bed.
4. The correct classification was therefore category B2, carrying an eight-year starting point and a seven-to-nine-year range. The weight of category 2 factors varies according to their nature, potency and combination. Here, the single factor was appropriately reflected by reducing the starting point to seven years, at the bottom of the range.
5. No further aggravating adjustment was required for ejaculation, since the seven-year sentence adequately comprehended that feature. The conclusion was fact-specific. Good character and the passage of time justified only a modest reduction. Good character has limited weight in serious sexual offending, and delay had limited traction because it resulted from the false not guilty plea and necessary trial. The offender was not punished for denying guilt, but was not entitled to mitigation arising from that conduct.

• Court of Appeal (Criminal Division): On a reference under section 36 of the Criminal Justice Act 1988, the court quashed the sentence of four years and six months and substituted six years and six months.
• Inner London Crown Court: Following conviction for rape on 24 January 2025, the offender was sentenced on 15 April 2025 to four years and six months’ imprisonment.