Indecent‑Image Recidivism as Evidence of “Dangerousness” Justifying an Extended Determinate Sentence for a Single Contact Offence: Commentary on McGillivary [2025] EWCA Crim 1255

Introduction

This commentary examines the England and Wales Court of Appeal (Criminal Division) decision in McGillivary [2025] EWCA Crim 1255 (8 August 2025), a renewed application for an extension of time to seek leave to appeal against sentence, refused by Sir Robin Spencer. The case carries the statutory anonymity obligations of the Sexual Offences (Amendment) Act 1992; nothing should be reported that could lead to the identification of the complainant.

The applicant, aged 51 at sentencing, was convicted after trial of assault of a child under 13 by penetration (Sexual Offences Act 2003, s.6(1)) and committed for sentence for three later offences of making indecent photographs/pseudo-photographs of children (Protection of Children Act 1978, s.1(1)(a), s.6). He received an extended determinate sentence (EDS) under s.279 of the Sentencing Act 2020: 8 years’ custody plus a 4‑year extended licence (total 12 years), with concurrent sentences for the indecent image offences.

On appeal, acting in person and out of time by 506 days, the applicant argued broadly that the sentence was overly harsh. The Court was “far from persuaded” by the explanation for delay but nonetheless considered the merits. The principal issues addressed by the Court of Appeal were:

• Whether there was any arguable basis to interfere with the EDS imposed for the single contact offence, taking account of extensive indecent‑image offending and risk.
• Whether the total sentence was manifestly excessive or wrong in principle given the Sentencing Council guideline categorisation (category 3A) and aggravating features.
• Whether the 506‑day extension should be granted in the absence of good reason and in light of the merits.

Summary of the Judgment

The Court of Appeal refused the application for an extension of time and refused leave to appeal. It held that:

• The application was substantially out of time without good reason; the suggestion that the solicitor directed the applicant to the CCRC was doubted, and in any event the CCRC route does not substitute for an appeal to the Court of Appeal.
• The trial judge’s categorisation of the index offence as category 3A under the relevant Sentencing Council guideline, with a 6‑year starting point and range of 4–9 years, was justified given the extreme psychological harm to a 4–6‑year‑old child and abuse of trust (in loco parentis).
• The judge was entitled to find the statutory “dangerousness” test satisfied and to impose an EDS under s.279 Sentencing Act 2020, in light of the applicant’s entrenched sexual interest in very young girls, extensive recidivism in indecent‑image offending (including while on bail and subject to a sexual harm prevention order), and the risk assessment in the pre‑sentence report (high risk of serious harm; moderate to high risk of reoffending).
• The overall sentence was neither manifestly excessive nor wrong in principle. The totality was appropriately managed by reflecting the indecent‑image criminality in the custodial term for the principal offence and by making the image‑offence sentences concurrent.

Analysis

Precedents Cited

No prior authorities were expressly cited in the Court’s short judgment. The decision proceeds by applying settled statutory frameworks and Sentencing Council guidelines:

• Sexual Offences (Amendment) Act 1992: lifetime anonymity for complainants.
• Sexual Offences Act 2003, s.6(1): assault of a child under 13 by penetration.
• Protection of Children Act 1978, s.1(1)(a), s.6: making indecent images of children.
• Sentencing Act 2020, s.279: extended determinate sentences for specified violent and sexual offences, where the “dangerousness” criteria are met.
• Sentencing Council guidelines: sexual offences guideline (categorisation by harm and culpability), and the General Guideline (including totality and aggravation for offending on bail).

Although no case law is referenced, the Court’s approach aligns with standard appellate principles: sentence appeals are allowed only where the sentence is wrong in principle or manifestly excessive, and out-of-time applications require both a good reason for delay and arguable merit.

Legal Reasoning

• Categorisation under the guideline:
  • The Court endorsed the trial judge’s classification of the penetrative assault as category 3A: harm level 3 (extreme psychological harm) and culpability A (abuse of trust, the applicant being in loco parentis during a paddling‑pool playdate with his own child).
  • Within that category, the starting point of 6 years and range of 4–9 years were correct. The devastating and enduring harm described in the victim personal statement reinforced the level-3 harm finding.
• Aggravating features:
  • Presence of another child (the applicant’s son) during the assault.
  • Highly relevant previous convictions for indecent images (2010; 2018; 2019), including distribution and breaches of orders/notification; a pattern showing entrenched sexual interest in young girls and the failure of prior rehabilitative interventions.
  • Further indecent‑image offences in 2021—committed while on Crown Court bail and subject to a sexual harm prevention order—with large volumes and high categories (524 category A; 315 B; 2,810 C), focused on pre‑pubescent girls (ages approximately 5–12) and revealing targeted searches (“pre‑teen”).
• Dangerousness and the Extended Determinate Sentence (EDS):
  • The pre‑sentence report, informed by extensive probation records and the applicant’s own historic admissions, assessed him as presenting a high risk of serious harm to children (including the very type of digital penetration committed) and a moderate to high risk of re‑offending. The Court accepted that a recent interview was not essential where the offender had refused to attend and the documentary risk picture was clear.
  • The judge found an entrenched sexual interest in very young girls, repeated failures under court orders and programmes, and escalation to contact offending. This supported the statutory dangerousness finding and necessity for an extended licence to protect the public.
  • On appeal, the Court concluded that imposing an EDS under s.279 was a principled and proportionate public‑protection response.
• Totality and concurrency:
  • The judge “reflected the criminality” of the indecent‑image offences in the overall structure: increasing the custodial term for the principal offence while making the image‑offence sentences concurrent.
  • The Court approved this totality approach, notwithstanding that the image crimes were committed on bail—an aggravating feature that could have justified consecutive terms. The concurrency, in context, was not unduly lenient and did not render the total sentence excessive.
• Out-of-time application and merits:
  • The 506‑day delay lacked a good reason. The asserted solicitor advice to go directly to the CCRC was implausible and in any event misconceived, as the CCRC is not a substitute for timely direct appeal.
  • Even treating the merits as determinative, the sentence was not arguable as manifestly excessive or wrong in principle, given the guideline position, aggravating factors, risk findings, and public‑protection rationale for the EDS.

Impact

This decision is a clear reaffirmation of several practical and doctrinal points likely to influence sentencing practice and sentence appeals in sexual offending cases involving children:

• Indecent‑image recidivism as probative of dangerousness:
  • Persistent indecent‑image offending—especially while on bail and under orders—can support a dangerousness finding for a single contact offence, where the pattern exhibits entrenched sexual interest in pre‑pubescent children and failure of rehabilitative efforts.
  • Practitioners should expect probation risk assessments and the offender’s historic compliance record to feature centrally when courts assess the necessity of an extended licence period.
• Extended determinate sentences for first contact offence:
  • Even where the index contact offence is a first such conviction, an EDS is available and appropriate if the significant risk of serious harm test is met and a standard determinate sentence cannot adequately protect the public.
• Guideline fidelity and harm-focused analysis:
  • Detailed victim personal statements evidencing enduring psychological trauma will fortify harm assessments at the highest guideline levels and justify movement up within the range.
• Totality and concurrency:
  • Courts retain flexibility to reflect multiple offences through concurrency combined with an uplift to the principal count, provided overall proportionality is maintained. Offending on bail remains an aggravating factor even if concurrency is adopted.
• Appeal practice:
  • Very substantial out‑of‑time applications require cogent justification and, absent good reason, will only proceed if there is an arguable error in the sentence. Reliance on the CCRC to excuse delay is misconceived.
  • Bald assertions that a sentence is “overly harsh,” without engagement with guideline structure, risk, and totality, will not reach the arguability threshold.

Complex Concepts Simplified

• Assault of a child under 13 by penetration (SOA 2003, s.6):
  • A serious sexual offence involving penetration (including with a finger), committed against a child under 13. The Sentencing Council guideline assesses culpability (blameworthiness) and harm (impact on the victim) to set a starting point and range.
• Category 3A (guideline):
  • “3” denotes a high level of harm—here, extreme and lasting psychological harm. “A” denotes high culpability—here, abuse of a position of trust/in loco parentis. The guideline gives a 6‑year starting point and a 4–9 year range for this category in the judgment’s framework.
• Extended Determinate Sentence (EDS) (Sentencing Act 2020, s.279):
  • A sentence for specified sexual/violent offences combining a custodial term with an “extended licence” period after release, used where the offender is assessed as “dangerous” (significant risk of serious harm from future offences) and extended supervision is necessary for public protection.
• Dangerousness:
  • A statutory assessment focusing on whether the offender poses a significant risk of serious harm to the public through future specified offences. Courts consider past behaviour, patterns of offending, compliance history, expert/Probation assessments, and the nature of the index offence.
• Totality and concurrency:
  • Sentences for multiple offences must be proportionate to the overall criminality. Judges may make sentences concurrent (served at the same time) or consecutive (one after another) to achieve a just total. Where concurrent sentences are used, the principal offence’s term may be adjusted to reflect the whole offending.
• Manifestly excessive/wrong in principle:
  • The appellate threshold for interfering with sentence. A sentence will only be changed if it falls outside the appropriate range, misapplies guidelines or statutes, ignores relevant factors, or is plainly too high (or too low) in context.
• Anonymity under the Sexual Offences (Amendment) Act 1992:
  • Prohibits publication of any matter likely to identify a complainant in a sexual offence case. The protection lasts for the complainant’s lifetime unless waived or lifted per statute.

Conclusion

McGillivary underscores that a persistent pattern of indecent‑image offending—particularly when committed under court orders and while on bail—can compellingly evidence “dangerousness” justifying an Extended Determinate Sentence for a single, serious contact offence against a child. The Court of Appeal’s endorsement of the trial judge’s category 3A assessment, the public‑protection rationale for an extended licence, and the totality management via concurrency collectively demonstrate a principled, guideline‑compliant approach to sentencing in complex sexual offending.

For practitioners, the key takeaways are clear:

• Where risk is entrenched and rehabilitative pathways have been exhausted, an EDS may be both necessary and proportionate even at a first contact conviction.
• The presence of another child, abuse of trust, offending on bail, and substantial high‑category indecent‑image collections are potent aggravators.
• Out‑of‑time sentence appeals must present both a compelling explanation for delay and a properly arguable sentencing error; recourse to the CCRC does not excuse non‑compliance with the 28‑day limit.

In the broader legal context, the decision consolidates existing principles rather than forging new doctrine, but it meaningfully clarifies their application: probation‑based risk assessments and demonstrable recidivism in non‑contact sexual offences can legitimately drive public‑protection sentencing for contact offences, and careful use of concurrency can satisfy the totality principle without rendering a sentence excessive.