R v Sammy Michael McCarthy

All kidnapping offences are serious. Their seriousness is assessed by considering the length of detention, the circumstances and method of restraint, violence, threats, the effect on the victim and vulnerability. An abusive personal relationship is generally a serious aggravating factor, not mitigation. Where kidnapping is accompanied by related offending, the court should assess the kidnapping first and then factor in the related offences when determining the overall sentence. Guilty plea credit remains relevant, but its extent depends on the timing and substance of the plea. An appellate court will not interfere where the resulting sentence is just, proportionate and within the range properly available to the sentencing judge.

The applicant pleaded guilty to two kidnappings, two assaults occasioning actual bodily harm and assault by beating arising from the prolonged detention and violence inflicted on two 17-year-old victims. On 28 October 2022, the Crown Court at Snaresbrook imposed an extended determinate sentence of 13 years, comprising 10 years’ custody and an extended licence period of three years, with concurrent sentences for the other offences.

The applicant renewed his application for an extension of 63 days to seek leave to appeal against sentence. He accepted that the dangerousness finding and extended sentence were permissible, but argued that the custodial terms were manifestly excessive because insufficient weight had been given to his guilty pleas, antecedents and personal mitigation.

The renewed application was dismissed. The court held that the custodial sentence was not arguably manifestly excessive and was instead just, proportionate and well within the range available to the sentencing judge.

1. Applicable kidnapping principles. The court explained that the older approach in R v Spence and Thomas (1983) 5 Cr App R (S) 413 had been materially altered by Attorney General’s Reference (Nos. 92 and 93 of 2014) (R v Gibney) [2014] EWCA Crim 2713 [2015] 1 Cr App R (S) 44 and Bowskill [2022] EWCA Crim 1358 [2023] 1 Cr App R S 12. All kidnapping offences are serious. Relevant factors include the duration of detention, the circumstances and method of restraint, violence, threats, impact on the victim and vulnerability. Abuse within a personal relationship is likely to aggravate the offence seriously.
2. Related offending and totality. Where kidnapping is accompanied by other offences, the court should begin by assessing the kidnapping alone and then factor in the related offending. The court must finally apply totality, recognising that separate victims and separate occasions may ordinarily justify consecutive sentences.
3. Application. Each kidnapping merited a starting point of at least eight years. The prolonged detention, coercion, violence, threats, two victims, their age and the abusive relationship substantially outweighed the mitigation. The written basis of plea did not challenge the prosecution’s factual account and did not justify the delayed pleas. Even allowing a maximum of 10 per cent credit for the kidnapping pleas, an overall sentence of eight years for those offences alone would have been lenient.
4. The judge was entitled to assess the actual bodily harm offences at or beyond the top of the guideline range before applying credit for the guilty pleas. The concurrent sentences and the overall 10-year custodial term properly reflected the combined criminality.

1. Crown Court at Snaresbrook: On 28 October 2022, imposed an extended determinate sentence of 13 years, comprising 10 years’ custody and a three-year extended licence period, with concurrent sentences for the other offences.
2. Court of Appeal (Criminal Division): Considered the renewed application for an extension of time to seek leave to appeal against sentence and dismissed it.