R v Tyrone McNamara

This is an appeal against sentence brought by leave of the single judge.

On 21 August 2025 in the Crown Court at Woolwich the appellant, who is now 26 years old, was convicted by the jury of breach of a Sexual Harm Prevention Order, contrary to section 103(1) (a) of the Sexual Offences Act 2003.

On 20 October 2025 he was sentenced by the trial judge, Her Honour Judge Welsh, to a term of 3 years' imprisonment.

The Sexual Harm Prevention Order in question was made on 28 February 2017, when the appellant was sentenced at Isleworth Crown Court to a term of 6 years' detention in a young offender institution for offences of taking a child without lawful authority so as to keep her from lawful control, contrary to section 2(1)(b) of the Child Abduction Act 1984, and an offence of controlling a child aged 13-17 subject to sexual exploitation, contrary to section 49(1)(a) of the Sexual Offences Act 2003. The appellant had pleaded guilty to those offences which were committed between May and July 2016. At the time of sentence for those offences the appellant was 17 years old.

The circumstances of those offences are relevant. A 15-year-old girl left her care home to meet the appellant. They travelled to Southall. In a hotel the appellant and another offender gave her heroin and cocaine. She and the appellant had sex. He asked whether she wanted to prostitute herself which she agreed to. She was then forced to commit acts of prostitution on the street corner outside the hotel. She said she wished to go home. She was assaulted by the appellant and the other offender during this time. The pre-sentence report in the present case gave some further background to those earlier offences. Probation records indicated that the appellant and his co-accused had kept the girl at the hotel for around four days, during which time she was not allowed to leave and was told the only way out was to be buried alive or her family would be killed. She was given cigarettes but they were laced with crack cocaine and heroin.

The Sexual Harm Prevention Order prohibited the appellant from having direct or indirect unsupervised contact or communication of any kind with any female child under the age of 18 years unless such contact was inadvertent and not reasonably avoidable in the course of lawful daily life, or was contact with the full express consent of the child's parent or guardian who had knowledge of the appellant's convictions and the terms of the order, and with the express approval of Social Services for the area in which the child resided.

As the order expressly provided, the court considered that such an order was “…necessary to protect the public or any particular members of the public… from sexual harm, or protect children or vulnerable adults generally…from sexual harm”.

On 25 February 2025, the date of the present offence, the appellant (then aged 25) was at his home address when the police attended in connection with another enquiry. Also present at the appellant's address was a girl aged 17, whom we shall refer to as ‘X’.

This was in clear breach of the Sexual Harm Prevention Order. The judge was satisfied from the evidence she heard in the trial that the appellant was in a relationship with X, although the appellant disputed this. His defence at trial was that he reasonably believed X to be over 18 and therefore had a reasonable excuse for the alleged breach.

Messages on X's phone, however, clearly indicated that she and the appellant were in a relationship. There was also an exchange of messages on the appellant's phone between the appellant and a third party in which the appellant said someone had "called Socials and told them about [X] lol". The third party replied, "Shit, no way, what are they saying, what’s [X] saying?" When asked if X knew, the appellant replied, "This might make [X] have Social on her case now." When asked in this exchange, "Does her mum know about you?" the appellant replied, "Yeah, but not everything". The third party said, "You got to be careful now. For fuck's sake, man, limit your contact with [her]. Make sure you haven't said I love you or anything in the messages, anything they can catch you out on, especially before she turned 18." The appellant replied, "Yes, I hear you."

At the trial the appellant told the jury that he did not know that X was under 18, that she had lied to him about her age, and that when they met she had shown him a photograph of a passport which confirmed she was 18. X herself gave evidence on behalf of the defence at the trial. She said that when she had met the appellant she had lied to him and told him she was 18. She had a copy of an altered passport which he saw. After a few months she informed him that she was in fact 17 but turning 18 in a few months' time. She said that contact stopped for a while but then resumed when the appellant now believed she was 18. She accepted that she had lied again in order to resume contact with him.

We have seen the judge's directions of law and route to verdict. The jury had to be sure that on the day in question the appellant did not believe X was aged 18 or older. Alternatively, if they were unsure of that, they had to be sure that the appellant's belief that X was aged 18 years or older was not a reasonable excuse for his having contact with her on that day. The jury plainly disbelieved the appellant's evidence and the evidence of X, as the judge explained and observed in her sentencing remarks.

The appellant had a number of previous convictions. As well as the convictions in 2017 which led to the making of the Sexual Harm Prevention Order, he had been sentenced several months earlier to 24 months' detention for possessing heroin and cannabis resin with intent to supply. His 6-year sentence was made consecutive to that term of 2 years. Whilst serving that sentence he pleaded guilty to possession in prison of knives or offensive weapons, for which a further consecutive sentence of 13 months' detention was imposed. It is apparent from the pre-sentence report that he breached his licence on release and had to be recalled on at least one occasion.

It was apparent from the pre-sentence report that the appellant was still maintaining his innocence. He had not accepted any responsibility for the offence or demonstrated any remorse. He said he had met X in central London only a couple of times. Their friendship after that was platonic, not sexual; they were just friends and nothing more. The report set out in some detail the appellant's troubled childhood and upbringing. The report noted that the appellant was of the view that he did not need to complete any offending behaviour work to improve his consequential thinking. He appeared resistant to completing any such work. There were indications in his case records of concerns regarding controlling behaviour and defiance towards authority.

His licence from the lengthy sentence had terminated in September 2024. Up to that point he was still assessed as posing a high risk of serious harm, primarily to females who may have a romantic interest in him but also to those with vulnerability factors. The risk, the report said, was also linked to the appellant being in situations with a female whom he can manipulate and easily persuade to act illegally with him or for him, through romantic interests or grooming. The report indicated that X was viewed as vulnerable owing to her own involvement with Social Services. The report assessed the appellant as posing a high risk of harm to children. Proposals for requirements in a community order were put forward in the report in the event that an immediate custodial sentence could be avoided.

There were supportive character references from two employers for whom the appellant had been working recently.

In her sentencing remarks the judge said that it was crystal clear from the messages exchanged that this was a romantic relationship that commenced around September or October 2024 and that the appellant had been well aware of X's age. The jury had rejected her evidence as well as his. The judge referred to the appellant's very difficult childhood and upbringing and observed that sadly he dealt with that trauma by exploiting and manipulating other vulnerable young people.

The judge noted that the character references spoke highly of the appellant’s attitude in the workplace, but that positive attitude towards work was in stark contrast to the way he dealt with people in the rest of his life.

Turning to the relevant Sentencing Council guideline, the judge was satisfied that this was a level A culpability offence. It was a very serious breach. It was direct contact with a girl under the age of 18 and was very serious because it was precisely to prohibit such contact that the order had been made following his conviction for exploiting a vulnerable girl.

The judge was satisfied that it was category 1 harm because there was clearly a risk of very serious harm. The judge noted that the guideline provided that in assessing any risk of harm posed by the breach, consideration should be given to the original offence for which the order was imposed and the circumstances in which the breach arose. Here, the offence underpinning the making of the order was serious sexual exploitation of a very vulnerable child.

The guideline starting point for a category 1A offence, which is where the judge placed it, was 3 years with a range of 2 to 4 ½ years. The judge treated as an aggravating feature of the offence the fact that she was sure on the evidence that this was a romantic relationship, not just contact, and that it had carried on for many months and was not limited to the date of the breach. This, she said, aggravated the breach.

The judge took into account as mitigation the fact that X was in fact 17 years 9 months on the date the police visited, which was the pleased date of the offence. The judge took into account the appellant's troubled upbringing and the impressive employment references.

The judge was satisfied that the aggravating and mitigating factors she had identified balanced each other out and that the appropriate sentence was 3 years' imprisonment.

We are grateful to Ms Caukwell for her written and oral submissions.

The first ground of appeal is that the judge was wrong to place the offence in category 1A under the guideline. Ms Caukwell submits that the offence properly fell within category 3B, with a starting point of 26 weeks' custody and a range up to 36 weeks.

She submits that contact between the appellant and X had been consensual; the level of harm was at the lower end of the guideline; this was the first and only breach of the Sexual Harm Prevention Order. She submits that the judge overstated the seriousness of the breach, bearing in mind that X was only three months away from her 18th birthday and that all contact had been consensual. She submits that the judge overstated the risk of harm: none had actually been caused, and, as it was put in the grounds of appeal, the risk was "little to none". She submits that the judge placed too much weight on the seriousness of the previous conviction leading to the making of the Sexual Harm Prevention Order.

The second ground of appeal is that the judge placed too much weight on the aggravating feature of the appellant's conduct prior to the date of the offence and the romantic relationship. Ms Caukwell submits that the appellant should have been sentenced simply on the basis of the single breach on the day charged in the count. She also submits that the judge double counted the fact that there was a romantic relationship between X and the appellant when that had already been taken into account in assessing culpability.

The complaint in the third ground of appeal is that the judge gave insufficient weight to the appellant's personal mitigation. He was only 17 at the time of the serious previous offence and only 25 years old at the time of the present offence. He was a young man lacking in maturity. His troubled upbringing and background were not given sufficient weight, it is submitted.

Finally, in her fourth ground of appeal Ms Caukwell submits that if correct weight had been given to the aggravating and mitigating features the sentence could and should have been 2 years or less, in which event suspension of the sentence could have been considered. She points out that the pre-sentence report had recommended a community-based punishment if immediate custody could be avoided.

We have considered all these submissions carefully, but we are unable to accept them.

The judge had presided over the trial and was well placed to assess culpability and harm. For the reasons the judge explained, this was a very serious breach. The Sexual Harm Prevention Order had been made precisely to prohibit contact with any girl under 18, even with the full express consent of the child's parent or guardian unless they had knowledge of the appellant's convictions and the terms of the Order and had express approval of Social Services for the area in which the child resided. X was known to Social Services. Contact with the appellant would never have been permitted. It was, therefore, level A high culpability.

The judge, we are satisfied, was also fully entitled to conclude that there was category 1 harm, because the breach risked very serious harm having regard to the circumstances of the appellant's previous conviction and the content of the pre-sentence report. The Probation Service's assessment of the high risk he posed to children and vulnerable girls in particular was very relevant. Having seen both the appellant and X give evidence, the judge was able to form her own view of them and of their relationship. It must have been a worrying factor that X had been prepared to lie for the appellant in the witness box. There was ample material, in our view, from which the judge could properly assess the harm risked by this breach of the order as very serious harm. It was therefore a category 1A offence, as the judge found, with a starting point of 3 years' custody.

The judge was fully entitled to treat as an aggravating factor the duration of the contact over a period of several months. The guideline provides in terms that it will be an aggravating factor if the “breach involves a further offence (where not separately prosecuted)”. Although X was only 3 months short of her 18th birthday on the day the police discovered the offence, it is clear the appellant had been in contact with her, in breach of the order, since the previous September or October (some four or five months earlier). This was plainly a significant aggravating feature.

The judge expressly referred to the appellant's personal mitigation including his age and his difficult childhood and upbringing. She assessed that the personal mitigation balanced out the aggravating factor of the length of the romantic relationship.

The judge was therefore fully entitled to conclude that the starting point of 3 years must also be the finishing point. This meant that there was no question of suspending the sentence.

Despite Ms Caukwell's valiant submissions, we are quite satisfied that the sentence was neither wrong in principle nor manifestly excessive. Accordingly, the appeal must be dismissed.