R v Derek Sean McGillivary

1. This is a renewed application for a lengthy extension of time within which to apply for leave to appeal against sentence, following refusal by the single judge. It is a case to which the provisions of the Sexual Offences (Amendment) Act 1992 apply. There must be no reporting of the case which is likely to lead members of the public to identify the victim of the offence. This prohibition applies for the lifetime of the victim unless waived or lifted in accordance with section 3 of the Act.

2. On 13 April 2022 in the Crown Court at St Albans, the applicant (now 51 years of age) was convicted by the jury of an offence of assault of a child under 13 by penetration, contrary to section 6(1) of the Sexual Offences Act 2003. Sentence was adjourned because it was anticipated that further charges were imminent. So it proved, and on 21 September 2022, having pleaded guilty in the magistrates' court, the applicant was committed for sentence to the Crown Court in respect of three offences of making indecent photographs or pseudo photographs of a child, contrary to section 1(1)(a) and section 6 of the Protection of Children Act 1978.

3. He was sentenced for all these matters together on 8 November 2022 by the trial judge, HHJ Caroline Wiggin. For the offence of assault of a child under 13 by penetration, the judge imposed an extended determinate sentence of 12 years pursuant to section 279 Sentencing Act 2020, comprising a custodial term of 8 years and an extended licence period of 4 years. The custodial term was expressed to reflect the criminality in the other three offences in respect of which concurrent sentences of 12 months, 6 months and 6 months' imprisonment were imposed. Appropriate ancillary orders were made.

4. The applicant did not appeal against his sentence at the time. Acting in person, he did not lodge grounds of appeal until 1 May 2024, some 18 months later. He therefore requires an extension of time of 506 days.

5. The applicant explains the delay as follows. He says his original solicitor did not provide a timely response within the 28-day limit and directed him instead to contact the Criminal Cases Review Commission to begin an appeal. We doubt that can be correct because there could be no application to the CCRC unless and until he had exhausted his remedy of an appeal to this court. He says that he only discovered the result of the CCRC’s investigation two days before lodging the present appeal and, although their report had been completed 15 months earlier, it had not reached him in prison. We are far from persuaded that there is any good reason for this long delay but, like the single judge, we have nevertheless considered the merits of the proposed appeal.

6. The offence of which the applicant was convicted by the jury took place sometime between 2010 and 2013. The victim was a little girl then aged 4 to 6 years old. She and her family lived next door to the applicant. On the day in question the little girl was playing in a paddling pool in the applicant's back garden along with the applicant's own young son. The applicant was therefore in loco parentis having been entrusted with the care of the girl by her parents. The applicant took the opportunity to put his hand under the girl's swimming costume and penetrated her vagina with his finger. He asked if it tickled. She said it hurt and he removed his finger. The girl did not tell her mother what had happened until several years later when she was about 8 years old. That hastened her family’s relocating to another area.

7. The applicant was not arrested until May 2019. In his police interview, and at trial in his evidence before the jury, he denied touching the little girl. At the PTPH in the Crown Court on 12 October 2020, he pleaded not guilty. The case was adjourned for trial and he was granted bail. The other offences for which he had to be sentenced were committed between September and December 2021. It follows that the applicant was on bail from the Crown Court, awaiting trial for the assault, when these further offences were committed.

8. Those offences arose because at that time the applicant was subject to a serious harm prevention order made on 5 July 2019. It was a requirement of the order that any new devices in the applicant's possession had to have risk management software installed. In July 2021, risk management software was installed on a new laptop which he purchased. In December 2021 the software alerted the police to suspected downloading of indecent images of children. As a result the police went to the applicant's home and seized his laptop. On analysis of the laptop, a total of 3,649 images were found. There were 524 category A indecent still images of children, 315 category B images and 2,810 category C images. All were of young girls aged approximately 5 to 12 years. There was evidence of the use of the search term "Pre-teen".

9. When interviewed by the police about these further offences the applicant made full admissions as to downloading the images but blamed the fact that he had lost his job and had too much time on his hands.

10. There was a victim personal statement from the little girl he had assaulted, by then aged

14. She said that as a result of the abuse at the applicant's hands, she could not bear any physical contact. She did not like touching anyone or anyone touching her. She could not even bring herself to hug family members including her mother. She said that the abuse made her feel insecure and trapped. She could not focus and her schoolwork had suffered. She was anxious much of the time and could not eat well. She had no trust towards men, including members of her own family. She had counselling at school which helped but she still feels the pain. She just does not trust people. She is frightened that she will always feel like this and worried that the pain will never go away.

11. The applicant had relevant previous convictions. In November 2010, for offences of making and possessing indecent images of children, he was made the subject of a community order for 3 years with an activity requirement and a programme requirement to attend an internet sex offender treatment programme. The sexual offences prevention order was made for a period of 5 years.

12. On 15 June 2018, he was convicted of six offences of possessing indecent images of children and three offences of distributing such images. He was sentenced to a total of 20 months' imprisonment. A sexual harm prevention order was made for a period of 10 years.

13. On 5 July 2019, he was convicted of four offences of making or possessing indecent images of children, failing to comply with notification requirements, and breach of the serious harm prevention order. He was sentenced to a total of 2 years' imprisonment and a further sexual harm prevention order was made for a period of 10 years. Those particular offences came to light when the police were called to Bedford central library, where the applicant had been printing off indecent images of children, specifically girls. In interview, he told the police that he accepted full responsibility for doing that, saying he knew he needed help in overcoming "…this horrible addiction. I know I need it now". His said his preference when looking at images of children was for young girls between 10 and 16 years of age.

14. There was a pre-sentence report addressing the issue of “dangerousness” in particular. For logistical reasons it had not been possible for the probation officer to interview the applicant, mainly because he was being moved from prison to prison. Video conference appointments either could not be made or were not kept. In the end the judge ordered that the applicant be produced to the cells at St Albans Crown Court so that he could be interviewed by the Probation Service. That also proved problematic and the first appointment had to be postponed. On the final occasion, a day or two later, the applicant refused to board the prison vehicle and was not therefore produced at court for the interview.

15. The probation officer nevertheless had access to all the necessary documentation, including extensive probation records and details of what the applicant had previously said about his attitude towards viewing indecent images of children and other sexualised material. The opinion expressed in the pre-sentence report was that the applicant presents a high risk of serious harm to children. The nature of that risk includes physical sexual assault, including digital penetration of young pre-pubescent children. The nature of the harm is both physical and psychological. The assessment in the report was the risk of the applicant reoffending is moderate to high.

16. In her sentencing remarks the judge referred to the devastating effect upon the victim of this sexual assault when she was a little girl. The judge considered that it was a category 3A offence under the relevant Sentencing Council guideline. There was level 3 harm because the girl had suffered extreme harm psychologically as a result of the offence. There was level A culpability because of the abuse of trust. This very young child had been left with the applicant as a neighbour. He had been trusted to look after her because he was looking after his own child in the same paddling pool. For a category 3A offence the guideline sentencing range was 4 to 9 years with a starting point of 6 years.

17. There were aggravating factors. First, another child was present, the applicant's own son. Second, his previous convictions. The judge said the applicant was a man who habitually accesses the most vile child pornography. His convictions for that had led to his exhausting all the options available to the Probation Service to assist those who have this addiction to turn away from it. The judge said it was clear that the applicant had no intention of turning away from his addiction to child pornography. She recited his convictions. The relevance of the indecent image offences in 2021 was that they showed how hollow the applicant's promises to probation officers had been over time, promises that he was going to put aside his interest in photographs of young children.

18. The judge was satisfied that the applicant had an entrenched belief that he could continue his sexual interest in very young children. The Probation Service had worked with him tirelessly but although he had completed their programmes it was obvious there was no further work they could do with him. Although this was his first conviction for a contact offence, in the light of the findings set out in her sentencing remarks the judge was satisfied the applicant met the statutory definition of dangerousness. The judge considered whether a simple determinate sentence might be appropriate but concluded it would not fully address the risk that he currently represents. It was necessary to impose an extended sentence to protect the public in future.

19. In his grounds of appeal the applicant says that, having looked at a criminal case law book, he "feels the judge was overly harsh" in the length of the sentence. He says that the offence (which he still denies) was meant to have happened more than 12 years ago but was not reported until he was in custody for other matters.

20. We have given careful consideration to the applicant's grounds of appeal and to all the material that he has asked to be put before us. We agree with the single judge that there is no arguable merit in the proposed appeal. The judge was fully entitled to find that this unpleasant sexual assault on a 4-year-old child in his care was a category 3A offence with a starting point of 6 years and a range of 4 to 9 years. The applicant's previous relevant convictions were a severely aggravating factor, as was the presence of another young child when the offence was committed, the applicant's own son. The judge reflected the applicant's overall criminality by making the sentences for the indecent images offences concurrent rather than consecutive, even though they had been committed whilst on bail. It is not arguable that the applicant's total sentence was manifestly excessive or in any way wrong in principle. It was unarguably just and proportionate.

21. Accordingly we refuse leave to appeal and refuse the application for an extension of time. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400 Email: [email protected]