R v Anthony McNamara

The provisions of the Sexual Offences (Amendment) Act 1992 apply to this case. Under those provisions, where an allegation has been made that a sexual offence has been committed against a person, no matter relating to that person shall, during that person’s lifetime, be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the 1992 Act .

This is an application on behalf of His Majesty’s Solicitor General for leave to refer a sentence to this Court which she regards as unduly lenient, made under section 36 of the Criminal Justice Act 1988 (“the 1988 Act”).

Count 1 - an offence of causing or inciting a child to engage in sexual activity, contrary to section 10(1) of the Sexual Offences Act 2003 . The sentence was 6 months’ imprisonment.

Factual Background

The facts are set out in detail in the Final Reference filed on behalf of the Solicitor General. To some extent they are not agreed on behalf of the respondent but, for material purposes, that does not matter. In summary, the offender groomed and repeatedly sexually abused his teenage stepdaughter for a period of 3 to 4 years, resulting in her giving birth to their son. After being arrested by the police, the offender persisted in contacting the victim, in breach of his bail conditions, and continued to pursue a sexual relationship with her.

The facts need for present purposes to be set out only in a little more detail. The victim’s mother started a relationship with the offender in May 2014. At the time the victim was aged 9 and lived with her mother and four elder brothers. The offender already had two children at the start of the relationship and in October 2015 the victim’s mother gave birth to their daughter.

In August 2018, a decision was taken for the offender, the victim’s mother and the children to move in together at an address in County Durham, although they still regularly visited the victim’s grandmother in London. By this time the victim thought of the offender as her “real dad”. The first incident of abuse occurred when the family had been visiting the victim’s grandmother in London, when the victim was aged 12. The first incident of rape occurred when the victim was aged 14.

In late April 2024, the victim disclosed what had been taking place to her mother, who subsequently contacted the police. The victim was video interviewed on 1 May 2024. The offender was arrested and interviewed the same day. He stated that he and the victim had always been close since he came into her life. He had looked out for her, as she had had a tough upbringing, with her brothers bullying her and her mother did not listen to her as she preferred the boys. He refused to provide the PIN code to his mobile phone, stating that it was not to do with the victim. He denied having any sexual interaction with the victim and explained their relationship was purely father/daughter. He accepted helping set up a bank account but denied having access to it. He denied that he was the father of the victim’s child. When asked why the victim may have made the allegations she did, he suggested the victim’s mother had got into her head because she wanted the victim to cut contact with him after their breakup.

The offender was bailed with conditions not to contact the victim. Despite this he continued to contact her, including arranging for her and her baby to travel away with him. He arranged to meet the victim at her flat and told her to write a letter to leave behind which stated: “Don’t try to look for us, we are finally happy. My family made me make that story up so it’s led to this!!!”. The offender told the victim to leave her mobile phone in case she could be traced.

He took the victim and her son to London where a mutual friend resided and then on to a hotel to Ipswich close to where his sister lived. All the time he told the victim that he loved her and they would be together as a family. Whilst in the hotel in Ipswich the offender and victim had sexual intercourse for the final time. The offender was reported to the police and the victim was found in bed with him in the hotel in Ipswich. The victim was naked in the bed.

The offender was arrested and interviewed by the police again on 18 May 2024. The offender provided a prepared statement in which he stated that the victim had contacted him in a distressed state, stating that as she had been having a hard time with her mother and needed to get away. The victim was living independently as an adult. Her son is under her care and she willingly brought him with them. He provided the PIN number for his devices but thereafter gave “no comment” to all questions.

Procedural History

The offender first appeared before Newton Aycliffe Magistrates’ Court on 20 May 2024, when the matter was sent for trial under section 51 of the Crime and Disorder Act 1998 . The offender indicated not guilty pleas to all matters save for possession of an offensive weapon (a pair of knuckledusters) found in the hotel in Ipswich when he was arrested, to which he pleaded guilty. He was remanded in custody on the grounds of interference with witnesses and commission of possible further offences.

The matter was listed for a plea and trial preparation hearing on 17 June 2024 in the Crown Court at Durham. The offender entered not guilty pleas to the indictment and the matter was fixed for trial on 28 October. On that date (the first scheduled day of the trial) the offender pleaded guilty to counts 1 to 5 and 7 to 9 on the indictment on the basis that none of the rape offences occurred when the victim was 13 years old and the victim travelled to Hartlepool and Ipswich willingly and knew about both journeys prior to embarking upon them. This basis was acceptable to the Crown. The case was adjourned for sentence. As we have mentioned, the sentencing hearing took place on 9 January 2025.

The Sentencing Framework

The Sentencing Process

The offender was in a position of power and trust. The author of the report considered that the offender took full advantage of the victim’s vulnerabilities in order to create opportunities to sexually abuse her and to continue the abuse over several years. The offender stated that he regretted his actions and felt disgusted with himself. The author considered that in spite of having some understanding of wrongdoing at the time, the offender continued to abuse the victim, prioritising his own sexual gratification over any feelings of immorality or wrongdoing and over any thought of the significant psychological impact that his sexual deviancy was having upon her. The report stated that there was a pattern of behaviour in respect of the repeat victimisation of the victim. The author considered the offender to pose a high risk of serious recidivism and a high risk of contact sexual offending. This assessment was based upon significant breaches of trust, the offender’s evident sexual attraction towards the victim, his admission of taking full advantage of her vulnerabilities, the prolonged period of time over which the sexual abuse took place and the troubling level of emotional congress which he felt towards the victim. He was also assessed as posing a high risk of causing serious harm to children.

The sentencing court also had a Sentencing Note from the prosecution and from the defence. The court had a victim impact statement from the victim in which she described, in eloquent terms, how she had been robbed of her childhood by the respondent. The court also had a statement from the allocated social worker for the victim’s son which stated, for example, that when she first met the victim she was a very vulnerable, withdrawn and scared young person.

In his sentencing remarks the judge adopted the following approach. He considered that he had to look at the totality of the offending which was (as he called it) “a systematic campaign of rape” resulting in pregnancy. The guidelines are designed to deal with one offence but where the court was dealing with a campaign over several years the guidelines had application but the behaviour was massively aggravated by the multiplicity of the offending and the period over which the offending took place. The victim had suffered serious psychological harm and been robbed of a childhood. The pregnancy resulted in her separation from her child and the victim became totally dependent on the offender. She has had suicidal ideation and continues to be haunted by what the offender did to her over the years. The judge considered that this was one complainant over a very long period with whom the offender had a clearly dysfunctional and misguided relationship and the offender posed a danger to her. The judge did not however consider the offender fulfilled the dangerousness criteria.

The offender groomed the victim, who was no more than a child. She was pre-teenage and any suggestion that he had some kind of misguided emotional attachment to her was hollow. The offender’s behaviour culminated in what could only be described as a systematic, premeditated campaign of rape of the victim between the ages of 14 and 16 which resulted in pregnancy. Count 4, as we have mentioned, was taken as the most serious and therefore the lead offence because it represented the campaign of systematic rape in which the offender indulged. The offender wheedled his way into the victim’s affections to the point where she believed she was in some kind of relationship with him. He had acted as a child molester. The offender continued to have sex with the victim even after she was 17 and deliberately tried to evade detection from the authorities. He helped the victim get away from her family and this compounded his culpability.

Submissions on behalf of the Solicitor General

On behalf of the Solicitor General, Ms Robertson submits that the sentence was unduly lenient for three main reasons. First, she submits that the judge adopted a starting point that was too low in the circumstances of this case. The judge appears to have approached the exercise initially on the basis that the offending fell at the cusp of categories 1 and 2, so providing a starting point of 13 years’ custody but this was increased to 15 years to reflect the number of offences and the duration of the offending. Ms Robertson submits this was inadequate to reflect the seriousness of the totality of this offending. She submits that even one offence of rape, in the circumstances of this case, would have justified a starting point within the category 1A range but this was a campaign of rape, indicted as occurring on at least eight occasions and the victim’s evidence was that it had occurred every other night at one stage.

Furthermore, Ms Robertson submits a further uplift was necessary to reflect the multiplicity of the offending. Counts 1, 2, 8 and 9 were distinct and serious offences in their own right. Counts 1 and 2 occurred when the victim was particularly vulnerable by virtue of her age, while counts 8 and 9 occurred when she was vulnerable by virtue of years of grooming, her status as a new mother and having been taken away from the safety of her own home. In this context she relies upon the decisions of this Court in R v JH [2015] EWCA Crim 54 ; [2015] 1 Cr App R(S) 59 and R v GT [2024] EWCA Crim 961 ; [2024] 2 Cr App R 47 at [38], where William Davis LJ addressed the question of the guideline when it refers to a campaign of rape “whatever that term may mean”. He said that the term is one example of a case which would justify sentencing outside the category range. The proposition advanced on behalf of the offender for the campaign of rape will involve multiple rapes on different victims has no support in any authority. The term is equally applicable to multiple rapes on same victim. Where a young woman is raped repeatedly by a man exercising his dominance over her, there is no reason in principle to describe that other than as a “campaign of rape”. In any event, he went on to state that the phrase “offences may be of such severity” in the guideline does not require that any single offence must be in the highest category of harm and culpability. Importantly, he said, the offending may be of the necessary level of severity because of the number of offences. The guideline states that offences may be of such severity as to justify a sentence of 20 years or more in such cases which can include where there is what it calls a “campaign of rape”. Ms Robertson submits that this case involved very serious repeated sexual offending over a number of years, against a young victim over whom the offender had control and dominion.

Ms Robertson’s second main submission is that the judge failed to make any or any adequate uplift of the starting point to reflect the multiple serious aggravating factors in this case. Those aggravating factors included the following. There was blackmail or other threats made. The offender used his mental health and threats to kill himself to ensure the victim did not disclose what was taking place. There was a pattern of controlling behaviour. The offender’s use of a secret mobile phone which then allowed him to track his victim’s movements, his control over her finances and his persistence in maintaining contact even when the victim sought to distance herself. Then there was the location of the offence in the victim’s own home. Further, the offence was committed in a domestic context, to which we will return. Next, steps were taken to prevent the victim reporting an incident or obtaining assistance. He told the victim not to tell anyone what had happened or he would go to prison. Further, there were attempts to dispose of and conceal evidence taking back the mobile phone from the victim. There was grooming behaviour and finally there were some attempts to blame others.

Ms Robertson emphasises to this Court that the offending took place in the context of domestic abuse where the Definitive Guideline on Domestic Abuse: Overarching Principles specifically lists the following aggravating factors which she submits were present in this case: abuse of trust and abuse of power; the victim is particularly vulnerable; steps are taken to prevent the victim obtaining assistance; the victim was forced to leave her home or steps have been taken to exclude the offender from home to ensure the victim’s safety and the impact on children. This includes, Ms Robertson submits, the impact on the child which the victim bore and who has been taken into care.

The third main submission advanced by Ms Robertson is that the judge erred in finding that the offender did not meet the statutory criteria for dangerousness. She submits that the judge and certainly the author of the pre-sentence report considered the offender to pose a danger to the victim in this case. The judge appears to have put too much weight on his previous good character and the fact that the offending was only against one victim. That does appear to us to be the approach taken by the judge having regard in particular to what he said when submissions were made by the Crown (see page 21A-B of the transcript of the sentencing hearing) and when he curtailed submissions that Ms McGurk was about to make on the dangerousness issue on behalf of the respondent (see page 30C-D of the same transcript). As Ms Robertson has fairly pointed out to this Court, it appears that the judge did not have the assistance from counsel for the Crown which he might otherwise have had. In particular, Ms Robertson submits that it is established in the case law that a risk even to one potential victim is sufficient for the test of dangerousness to be satisfied (see R v Hashi [1995] 16 Cr App R(S) 121 (Judge J) which was approved and applied in the present post-Criminal Justice Act 2003 context in R v Laverick [2015] EWCA Crim 1059 ; [2015] 2 Cr App R(S) 62 at [13] (William Davis J)).

The Submissions on behalf of the Respondent

On behalf of the respondent, Ms McGurk submits that the sentence in this case was lenient but was not unduly so. She submits that the Recorder did find that the offending constituted a “campaign of rape” but she respectfully questions that. She submits that the offender was labouring under the unreasonable belief that he loved the victim and was therefore engaged in a consensual relationship rather than raping her. She submits that one cannot unknowingly embark upon such a campaign. In any event, it is submitted there was no obligation on the Recorder to sentence a “campaign of rape” outside the guidelines. With respect to Ms McGurk, we disagree with her submission of principle. We agree with Ms Robertson that there is nothing which requires the concept of a “campaign of rape” to be undertaken “knowingly”. But in any event, as this Court has made clear in the earlier decisions to which we have referred above, it is not necessarily helpful to refer to the phrase “a campaign”; what matters is precisely what the particular offender did and close attention should be paid to the facts of the particular case before the Court.

Turning to the issue of dangerousness , Ms McGurk submits that the respondent does not pose a significant risk to members of the public of serious harm occasioned by the commission of further specified offences. She reminds this Court, of the decision in R v Lang [2005] EWCA Crim 2864 ; [2006] 2 Cr App R( S) 3 at [17(i)] where Rose LJ said that a risk must be “noteworthy of considerable amount or importance” before it can be “significant”. Ms McGurk submits that the statistical tool employed by the author of the pre-sentence report assessed the respondent to pose a low risk of committing further offences. The author acknowledged the possibility of the victim an isolated one because of a particular set of circumstances and the respondent has no general attraction to children.

Our Assessment

The judge at first instance is particularly well placed to assess the weight to be given to competing factors in considering sentence;

A sentence is only unduly lenient where it falls outside the range of sentences which the judge at first instance might reasonably consider appropriate;

Leave to refer a sentence should only be granted by this Court in exceptional circumstance and not in borderline cases and

Section 36 is designed to deal with cases where judges have fallen into gross error.

We consider first the question of dangerousness. We have reached the conclusion that the way in which the Recorder approached this question was wrong in principle and, in any event, he ought on the evidence before him to have concluded that the offender satisfies the statutory test of dangerousness. We have already mentioned the passages in the transcript of the sentencing hearing where the Recorder appears to have thought that the statutory criteria for dangerousness could not be satisfied where there was only a single victim. That approach was wrong in principle although we acknowledge, as Ms Robertson has done, that he may not have had the assistance which he needed from counsel for the Crown. Furthermore, and in any event, in our judgment, the evidence before the Court was clear (see in particular the pre-sentence report at paragraphs 4.1 and 4.3). The risk posed by this offender is not only to this particular victim but does exist in relation to other children potentially in the future.

This was not, in our judgment, an offender whose risk to members of the public could be adequately addressed by a determinate sentence, even as part of a package including a sexual harm prevention order. We are satisfied that an extended sentenced, under section 279 of the Sentencing Code 2020, is required.

We turn to the appropriate custodial term. This is equivalent to a notional determinate sentence that would be imposed. Again, we have reached the conclusion that the determinate sentence passed by the Recorder was unduly lenient. There were multiple counts but even the lead count alleged at least eight occasions of rape. There were aggravating factors and very little by way of mitigation. In cases of this type, previous good character (if that is an accurate description) can be given little weight. Having regard to the authorities we have mentioned above, we are satisfied that this offending could properly be described as “a campaign of rape” but, in any event, it had other serious features including grooming and the context of domestic abuse. Of course the principle of totality must be respected and the sentence must be just and proportionate but it must reflect the true gravity of the overall offending. In this case, we have reached the conclusion that the notional sentence after trial should have been one of 20 years’ imprisonment. With credit of 10 per cent for the late guilty pleas, that results in a custodial term of 18 years. We consider that an extended licence period or extension period of 5 years is then needed to be added to that custodial term in order to protect the public when the offender is released on licence.

Conclusion

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