R v Derek Sean McGillivary

A lengthy delay in seeking leave to appeal against sentence requires an extension of time, but the court may consider the proposed appeal on its merits before deciding whether to grant one. An extended sentence is justified where the statutory test of dangerousness is met and a determinate sentence would not adequately protect the public. In assessing sentence, the court may take account of relevant previous convictions, aggravating circumstances, and connected offending sentenced at the same time. Concurrent sentences may reflect overall criminality even where further offences were committed on bail. An appellate challenge fails where the sentence is not manifestly excessive, wrong in principle, or disproportionate.

The applicant sought a 506-day extension of time to renew an application for leave to appeal against sentence. He had been convicted at St Albans Crown Court, case no [T20207204], of assaulting a child under 13 by penetration and later pleaded guilty to three offences involving indecent images of children. On 8 November 2022, HHJ Caroline Wiggin imposed an extended determinate sentence of 12 years for the contact offence, comprising eight years’ custody and a four-year extended licence, with concurrent terms for the image offences.

The applicant attributed the delay to advice concerning the Criminal Cases Review Commission and disputed the severity of sentence. The central issues were whether there was a good reason for the delay and whether the proposed appeal had any arguable merit.

1. Disposition. The renewed application for an extension of time and the application for leave to appeal against sentence were refused.
2. Extension of time and merits. The court was far from persuaded that the applicant had shown a good reason for the 506-day delay. Nevertheless, it considered the merits of the proposed appeal, as had the single judge, and found no arguable merit.
3. Starting point and guideline assessment. The sentencing judge was entitled to treat the assault on a four-year-old child entrusted to the applicant’s care as a category 3A offence under the applicable guideline. The abuse of trust established level A culpability, and the victim’s extreme psychological harm established level 3 harm. The resulting guideline range was four to nine years, with a six-year starting point.
4. Aggravating features and totality. The presence of another young child and the applicant’s relevant previous convictions were severely aggravating factors. The later indecent-image offending, committed while the applicant was on bail awaiting trial, materially demonstrated his continuing criminality and the failure of earlier rehabilitative efforts. The concurrent sentences for those offences appropriately reflected the applicant’s overall criminality.
5. Dangerousness and extended sentence. The sentencing judge was entitled to conclude, on the probation material and the applicant’s history, that he met the statutory definition of dangerousness. Although the contact offence was his first conviction for a contact offence, the assessed risk included physical sexual assault of young pre-pubescent children, with physical and psychological consequences. A simple determinate sentence would not fully address the continuing risk, so an extended sentence was necessary to protect the public.
6. The total sentence was not arguably manifestly excessive or wrong in principle. It was just and proportionate.

• Crown Court at St Albans: On 8 November 2022 HHJ Caroline Wiggin sentenced the applicant to an extended determinate sentence of 12 years for assault of a child under 13 by penetration, with concurrent custodial terms for three indecent-image offences.
• Court of Appeal (Criminal Division): The single judge refused leave. The present court refused the renewed application for leave and the 506-day extension of time.