Clarifying Child-Vulnerability and Multi-Victim Sentencing:
Commentary on R v M ([2025] EWCA Crim 872)

1. Introduction

In R v M the Court of Appeal (Criminal Division) was asked by the Solicitor-General, under s.36 Criminal Justice Act 1988, to declare a Crown Court sentence “unduly lenient” and to substitute a higher term. The offender, DM (anonymised to protect the two child victims), had received 14 years’ imprisonment for a campaign of sexual abuse and rapes committed against two sisters, aged 11 and 13. The reference raised two inter-linked questions:

1. Whether the Crown Court mis-categorised the rapes by ignoring the victims’ particular vulnerability due to age (thereby starting from too low a sentencing bracket under the Sentencing Council guideline).
2. Whether the judge erred, as a matter of principle, by (a) absorbing all offending into one “lead” rape count without reflecting the existence of a second victim, or (b) failing to impose any consecutive element for the offences against the younger child.

Although the Court found errors in the categorisation and the treatment of multiple victims, it ultimately declined to increase the sentence, holding it was “lenient but not unduly so”. Importantly, the Court crystallised two practical sentencing messages:

1. A 13-year-old rape victim is “particularly vulnerable due to personal circumstances” for the purposes of category 2A of the Adult Rape Guideline.
2. Where there are multiple victims, the judge must either: (i) explicitly raise the lead sentence to reflect offending against the other victim(s), or (ii) impose consecutive terms. Failing to make the mechanism transparent risks conveying that some victims “do not matter”.

2. Summary of the Judgment

• The Appeal Court (Edis LJ, with Macur and Wall JJ) granted leave for the reference but dismissed it.
• The Crown Court’s 14-year global term was not increased despite the following judicial errors:
  • Wrongly treating each rape as harm category 3 rather than 2.
  • Failing to show any punitive element for offences against the 11-year-old AB.
• Nevertheless, measured against the totality of offending and the Sentencing Council ranges, the final sentence lay within a tolerable bracket; therefore it was not “unduly” lenient.
• The Court restated that in multi-victim cases judges must adopt either an uplifted lead sentence or consecutive sentences to make clear that all victims are recognised.

3. Detailed Analysis

3.1 Precedents Cited & Guideline Framework

1. Sentencing Council Guidelines
   • “Rape (Adult Victim)” Guideline – applied because CD was 13 (just outside the “rape of a child under 13” guideline).
   • “Sexual Activity with a Child” & “Sexual Assault of a Child” Guidelines – for non-rape counts.
   • Key provision: “Victim particularly vulnerable due to personal circumstances” – escalates harm from category 3 to 2.
2. R v Saunders [2022] EWCA Crim 264
   • Confirmed vulnerability can be situational (victim asleep, intoxicated) and not merely an enduring trait.
   • Cited by the Solicitor-General to argue that a 13-year-old’s age ipso facto created particular vulnerability.
3. Totality principle – rooted in Attorney-General’s Reference (No 11 of 2019) and R v Clarke, requiring sentences to be proportionate to overall offending while avoiding a “mathematical” cumulation.

3.2 The Court’s Legal Reasoning

1. Error Identification
   • The Crown Court’s demotion of each rape to category 3 misread the guideline: age placed CD at the lower end of the relevant cohort, triggering “particular vulnerability”.
   • The 14-year term did not, on its face, include any punishment for the offences against AB; nor were the two-year sentences for her run consecutively.
2. Materiality Assessment
   • Correct categorisation would raise the starting point for a single rape from 7 to 10 years, with a range up to 13.
   • Yet the trial judge had already uplifted each rape to 11 years before aggregating, then to 14 years for totality—putting the global sentence within (or just above) where a category-2 analysis would likely land.
   • Thus, despite analytical mis-steps, the final figure remained defensible.
3. Multi-Victim Principle
   • Sentencers must visibly recognise each victim.
   • Achievable by:
     1. Increasing the lead sentence to incorporate other victims’ harm, and stating that is what has been done; or
     2. Imposing consecutive sentences (subject to totality).
   • Failure to articulate either course risks suggesting one victim “does not matter”.
4. Unduly Lenient Test
   • The benchmark is not the line between “right” and “wrong” but whether the sentence falls outside the range a reasonable judge could impose.
   • While other judges “might well” have gone higher, the 14-year term was not far enough below the reasonable range to compel interference.
5. Dangerousness & Extended Sentences
   • The Crown Court’s decision not to impose an extended licence period was not challenged; the Appeal Court made no adverse comment on that aspect.

3.3 Anticipated Impact of the Decision

The judgment is likely to influence trial judges and practitioners in three immediate ways:

1. Categorisation Clarity – Courts should treat very young teenagers (13–14) as “particularly vulnerable” under the adult rape guideline unless exceptional facts dictate otherwise.
2. Sentencing Structure – Explicit reasoning is required where more than one victim is involved. Future indictments and sentencing remarks are expected to show either an articulated uplift or the use of consecutive terms.
3. Reference Threshold – The Court re-emphasised that a sentence can contain errors yet remain within the permissible range. The Solicitor-General’s reference power is not a mechanism for “fine-tuning” sentences that are merely lenient.

4. Complex Concepts Simplified

• Unduly Lenient Sentence (ULS)
  A sentence is “unduly” lenient only if it falls outside the spectrum that a reasonably competent judge could have imposed. It must be more than merely lenient.
• s.36 Criminal Justice Act 1988 Reference
  Allows the Attorney-General or Solicitor-General to ask the Court of Appeal to increase a Crown Court sentence deemed unduly lenient.
• Concurrent vs Consecutive sentences
  Concurrent: served at the same time; Consecutive: served one after the other. Judges use the “totality principle” to avoid a sentence that is either crushingly long or inappropriately short.
• Lead offence method
  A technique where the judge selects the most serious count, determines a sentence capturing the overall criminality, and runs lesser counts concurrently.
• Category 2A / 3A (Adult Rape Guideline)
  Harm category determined by vulnerability and nature of harm. Culpability “A” is the highest, capturing abuse of trust, planning or use of force.

5. Conclusion

R v M supplies two important refinements to English sentencing practice in sexual-offence cases:

1. A 13-year-old rape victim’s age constitutes “particular vulnerability” sufficient to elevate harm to category 2, absent contrary facts.
2. Where multiple victims exist, a transparent mechanism (either uplift or consecutive sentences) must ensure that each victim is seen to be acknowledged in the punishment imposed.

Although the Court found the trial judge erred on both points, it accepted that a meticulous—if imperfect—application of the Sentencing Council framework had still produced a sentence within the defensible range. The result confirms the appellate threshold for a Solicitor-General’s reference remains properly high, while also giving sentencers fresh guidance on vulnerability and multi-victim structure, likely shaping future sexual-offence sentencing across England and Wales.