The “James Departure”: Judicial Scope to Exceed Guideline Ranges in Serial Assault-by-Penetration Cases

Introduction

James, R. v ([2025] EWCA Crim 808) is a Court of Appeal (Criminal Division) decision that re-examines the boundaries of judicial discretion when applying the Sentencing Council’s “Sexual offences – Assault by Penetration” guideline. Terry James, the appellant, ran a tattoo/laser-hair-removal business which he used to commit a series of covert sexual offences against eight women, filming much of the abuse. Having pleaded guilty to 26 counts (assault by penetration, sexual assault, and child-image offences) at different procedural stages, he received two extended determinate sentences (EDS) of 20 and 19 years 1 month respectively. He appealed against sentence contending that the 17-year custodial term significantly exceeded the guideline range (5–13 years) and was therefore manifestly excessive.

The Court of Appeal dismissed the appeal but, in doing so, offered extensive guidance on:

• When and how a sentencing judge may properly go beyond the upper limit of the guideline range for an individual offence;
• The interaction between Step 2 (“moving outside the range in the most serious cases”) and totality for multi-count indictments;
• Fine-tuning of ancillary orders (SHPOs, victim surcharge, forfeiture and destruction) and the requirement that such orders be pronounced in open court.

Summary of the Judgment

Dismissal of the appeal. The Court held that a 17-year custodial term (within a 20-year EDS) was not excessive notwithstanding that it was four years above the top of the Category 2A range. Key factors justifying the uplift included:

• Serial offending against eight victims, three of whom experienced multiple incidents;
• Significant planning, exploitation of a legitimate business, covert filming and distribution of images;
• Commission of the offences whilst on bail-equivalent status and subject to an existing Sexual Harm Prevention Order (SHPO) for prior child-image crimes;
• Severe psychological harm to victims and the appellant’s lack of remorse.

On ancillary matters, the Court:

• Clarified that the EDS applied only to the assault-by-penetration counts;
• Rectified the recording error: a new indefinite SHPO was imposed (the 2017 order had expired);
• Corrected the victim surcharge from £228 to £190 (the amount applicable on the sentencing date);
• Revoked the forfeiture & destruction order because it was not pronounced in open court, applying R v Leitch [2024] EWCA Crim 563.

Analysis

Precedents Cited

The Court emphasised that the guideline is a starting point, not a straitjacket. By expressly invoking Step 2, the sentencing judge was entitled to impose a sentence outside the 5–13-year range where the aggregate seriousness warranted it. Leitch was relied on only for the procedural point concerning forfeiture orders, but its reiteration signals the Court’s commitment to transparency in ancillary sentencing powers.

Legal Reasoning

The appellate court’s reasoning proceeded in four stages:

1. Re-assessment of Category and Starting Point. The original judge had classed each assault by penetration as Category 2A: significant planning, multiple victims, covert filming (Culpability A) and “particularly vulnerable” victims with substantial or severe psychological harm (Harm 2). The Court of Appeal endorsed that classification.
2. Step 2 Uplift Justified. Departing from a maximum of 13 years was justified by “the totality of circumstances”:
   • Eight complainants + three multi-incident counts;
   • Ongoing SHPO breach and offending while under investigation;
   • Aggravating mosaic: abuse of trust, covert filming, distribution of images, absence of remorse, and demonstrable serious psychological harm.
   Together, these placed the case among “the most serious” envisaged by the guideline.
3. Ensuring Proportionality Through Totality. Although one could aggregate sentences consecutively, the judge preferred concurrent sentences but raised each to reflect overall seriousness. The Court found that approach legitimate: it balanced totality, protected the public (via extended licence), and avoided a “notional” sentence that could have exceeded 30 years had each count received a separate term.
4. No Manifest Excess. The ultimate question on appeal remains whether the sentence is “excessive” or “wrong in principle”. Given the gravity and risk factors, 17 years was harsh but not outside reasonable parameters.

Likely Impact of the Decision

1. Sentencing Practice: The judgment crystallises what many first-instance judges already do in practice but seldom articulate: move beyond the top of the range where the combination of aggravating features makes the case “wholly exceptional”. Practitioners can now cite James as authority for a four-year uplift above the range in a Category 2A assault-by-penetration case involving: (a) numerous victims; (b) abuse of professional trust; and (c) filming/distribution.

2. Covert-filming Offences: Using a hidden camera, especially during commercial services, will likely be treated as a major aggravating factor warranting upward departure.

3. Plea Discounts: The Court implicitly approved a modest 5 % discount where some victims had yet to testify (post-cross-examination pleas). Defence teams cannot expect the standard one-third reduction once the trial has commenced.

4. Ancillary Orders: The procedural rectifications reinforce that:

• SHPOs must be clear on whether they are new or a variation;
• Victim surcharges must be stated in open court;
• Forfeiture/destruction orders pronounced only administratively are a nullity.

Complex Concepts Simplified

Conclusion

James is now a leading authority on upward departures from the sexual-offence guidelines for serial assault-by-penetration cases. By endorsing a sentence four years above the upper guideline limit, the Court confirmed that:

• Guideline ranges are flexible where multiple severe aggravators accumulate;
• The overall criminality of “serial, covert, professional-context” offending may be reflected by raising each principal count rather than stacking consecutive terms;
• Ancillary orders, though often overlooked, require strict procedural compliance and transparent pronouncement.

Practitioners should treat The “James Departure” as a benchmark when advising clients (or sentencing courts) in complex, multi-victim sexual cases involving abuse of trust and digital recording. It signals a readiness of the appellate courts to uphold robust, even unprecedented, custodial terms where public protection and victim impact demand it.