R v Anthony McNamara

On a reference under section 36 of the Criminal Justice Act 1988, a sentence is unduly lenient only where it falls outside the reasonable range open to the sentencing judge. The jurisdiction is exceptional and addresses gross error.

Dangerousness is not excluded because the offending involved one known victim. An extended sentence under section 279 of the Sentencing Code 2020 is required where a determinate sentence, even with protective orders, cannot adequately address the risk of serious harm from further specified offences. Repeated rape of one victim may constitute a campaign of rape, but the court must assess the actual offending, including its duration, multiplicity, grooming and domestic-abuse context.

The Solicitor General referred sentences imposed by the Crown Court at Durham on 9 January 2025. The offender had pleaded guilty at a late stage to multiple sexual offences against his teenage stepdaughter, including rape, assault by penetration and sexual offences involving a child family member. He had also pleaded guilty to possessing an offensive weapon.

The Recorder imposed a total determinate sentence of 13 years’ imprisonment, treating one rape count as the lead count and making the other sentences concurrent. He also imposed protective orders but concluded that the statutory dangerousness criteria were not met. The central questions were whether the sentences were unduly lenient and whether an extended sentence was required.

1. Reference and threshold. The Court granted the application under section 36 of the Criminal Justice Act 1988. Applying the principles summarised in Attorney-General’s Reference (R v Egan) [2022] EWCA Crim 1751, the sentencing judge’s assessment deserved respect, but the reference was appropriate because the sentence fell outside the reasonable range and involved gross error.
2. Dangerousness. The Recorder had erred in principle by apparently treating a single victim as preventing a finding of dangerousness. The statutory assessment was not confined to risk to that victim. The evidence, particularly the pre-sentence report, established a risk of serious harm from further sexual offending against children. A determinate sentence, even with a sexual harm prevention order, could not adequately address that risk.
3. Extended sentence. An extended sentence under section 279 of the Sentencing Code 2020 was therefore required. The Court imposed a notional determinate sentence of 20 years, reduced by 10 per cent for the late guilty pleas to a custodial term of 18 years, together with a five-year extension period.
4. Custodial term. The offending could properly be described as a campaign of rape. The concept was not confined to multiple victims or offending undertaken knowingly. The authorities, including R v JH [2015] EWCA Crim 54 and R v GT [2024] EWCA Crim 961, supported close attention to the actual offending and to the number and duration of the offences. Totality and proportionality remained essential, but previous good character carried little weight against prolonged, groomed and domestically abusive offending causing severe psychological harm.
5. The sentences were quashed and replaced. The sentences on the other counts were increased as specified, remaining concurrent. No separate penalty was imposed for the offensive weapon. The total sentence was an extended sentence of 23 years, comprising 18 years’ custody and a five-year extension period. The existing restraining order and sexual harm prevention order remained in force.

• Court of Appeal (Criminal Division): On 3 April 2025, in [2025] EWCA Crim 550, the application under section 36 of the Criminal Justice Act 1988 was granted. The sentences imposed below were quashed and replaced.
• Crown Court at Durham: On 9 January 2025, Mr Recorder Enoch KC imposed a total determinate sentence of 13 years’ imprisonment.