McNamara, R. v

Factual and Procedural Background

This is an appeal against sentence brought by leave of a single judge. The Appellant was convicted on 21 August 2025 at The Court of breach of a Sexual Harm Prevention Order (section 103(1)(a), Sexual Offences Act 2003) and sentenced on 20 October 2025 by the sentencing judge, Judge [Last Name], to 3 years' imprisonment.

The Sexual Harm Prevention Order (SHPO) had been made on 28 February 2017 when the Appellant, then aged 17, was sentenced at The Court for convictions including taking a child without lawful authority (Child Abduction Act 1984) and controlling a child aged 13–17 for sexual exploitation (Sexual Offences Act 2003). The underlying offending involved a 15‑year‑old girl who was kept in a hotel, given drugs and forced into prostitution; Probation records indicated threats and coercion over several days.

The SHPO prohibited direct or indirect unsupervised contact or communication with any female under 18 unless narrowly specified exceptions applied; the court made the order to protect children and vulnerable adults from sexual harm.

On 25 February 2025 the Appellant was at his home when police attended; present was a 17‑year‑old female (the Child). The presence of the Child at the Appellant's address breached the SHPO. The Appellant's defence at trial was that he reasonably believed the Child to be over 18; the jury rejected that defence. The sentencing judge imposed 3 years' custody.

Legal Issues Presented

1. Whether the sentencing judge erred in placing the offence in category 1A under the Sentencing Council guideline (challenger: that it should have been category 3B).
2. Whether the judge double counted or gave excessive weight to aggravating features, including duration of the relationship and conduct prior to the charged date.
3. Whether the judge gave insufficient weight to the Appellant's personal mitigation (youth at time of earlier offending, traumatic upbringing, limited maturity).
4. Whether, if mitigation had been correctly assessed, the sentence should have been reduced to 2 years or less and potentially suspended or replaced by a community-based sanction.

Arguments of the Parties

Appellant's Arguments

• The offence should have been placed in category 3B (starting point 26 weeks, range up to 36 weeks) rather than category 1A.
• Contact between the Appellant and the Child was consensual; harm was minimal and none had materialised; the Child was close to 18 (three months short).
• The judge overstated the seriousness of the breach and over‑relied on the previous conviction that led to the SHPO.
• The judge gave excessive weight to pre‑offence conduct and the romantic relationship; this involved double counting.
• Insufficient weight was given to mitigation (age at previous offending, youth, troubled upbringing); if mitigation were properly weighed the sentence could have been 2 years or less and suspension or a community sentence should have been considered; the pre‑sentence report recommended community measures if immediate custody could be avoided.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The appellate court considered the sentencing judge's findings and reasons and declined the Appellant's challenges.

1. The sentencing judge had presided at trial and was therefore well placed to assess credibility, culpability and harm. The judge concluded, on the evidence and messages exchanged between the Appellant and the Child, that the contact was a romantic relationship and that both the Appellant and the Child had given evidence the jury rejected.
2. The judge placed the offence at level A culpability because the SHPO had been made specifically to prohibit contact with any girl under 18 and, given that the Child was known to Social Services, such contact would never have been permitted. The appellate court accepted this assessment.
3. The judge concluded there was category 1 harm (risk of very serious harm) taking account of the circumstances of the underlying offending, the pre‑sentence report and the Probation Service's assessment that the Appellant posed a high risk of serious harm to children and vulnerable girls. The appellate court found ample material to support that conclusion.
4. The sentencing judge treated the duration of the contact (several months) as an aggravating feature; the guideline expressly treats prolonged breach or breach involving further offending as aggravating. The appellate court held this was a proper aggravating factor and not double counting when properly analysed.
5. The sentencing judge expressly noted personal mitigation (age, difficult upbringing, positive employment references) and assessed that mitigation as balancing aggravating features; nonetheless the judge determined that the starting point of 3 years for category 1A was also the appropriate sentence (finishing point), leaving no room for suspension. The appellate court upheld that exercise of judgment and the resulting conclusion that immediate custody was required.

Holding and Implications

DISMISSED

The appeal against sentence is dismissed and the sentence of 3 years' imprisonment is affirmed. The direct consequence is that the Appellant's custodial sentence remains in force; the opinion records no establishment of new precedent beyond application of the Sentencing Council guideline to the facts of this case.