Jersey Unreported Judgments

Inferior Number Sentencing - exposing person.

[2015]JRC168

Royal Court

(Samedi)

14 August 2015

Before     :

W. J. Bailhache, Esq., Bailiff, and Jurats Nicolle and Blampied

The Attorney General

-v-

Kevin Andrew Lochhead

Sentencing by the Inferior Number of the Royal Court, following a guilty plea to the following charge:

1 count of:

Exposing person (Count 1).

Age:  49.

Plea: Guilty.

Details of Offence:

On 9^th April, 2015, Girl A (12 years old) and Girl B (13 years old) were walking around the wall of the West Park Bathing Pool.  As they were walking they observed Lochhead to be "playing with himself", pushing his penis up and down and that he was wearing only a "greenie/grey" t-shirt.  The girls were scared and quickly walked past Lochhead.  Several minutes later the girls again saw Lochhead, he turned towards them and openly masturbated while "staring" at them.  He was approximately two or three metres away from the girls.  Girl A saw that his penis was erect. 

Girl C (11 years old) and Girl D (also 11 years old) were also at West Park Bathing Pool and they observed Lochhead wearing nothing but his t-shirt wandering around on the rocks by the bathing pool. 

Girl A reported feeling "intimidated" by Lochhead's actions, Girl C said his behaviour made her feel "awkward" and Girl D said that she had felt "uncomfortable".

Lochhead was arrested and interviewed on 10^th April, 2015, but denied any involvement in the incident. 

Girl A and Girl D both attended at Police Headquarters to view separate PROMAT parades on 16^th April, 2015.  Girl A identified Lochhead as the man she had seen and Girl D was unable to identify the man but said that two men (one of whom was Lochhead) could have been the man she and her friend had seen. 

Lochhead was again arrested and interviewed on 17^th April, 2015, he maintained that he was not involved in the incident and that it must be a case of mistaken identity. 

This offence also placed Lochhead in breach of a 2 year Royal Court Probation Order imposed on 11^th April, 2014. 

Details of Mitigation:

Guilty plea, remorse. 

Previous Convictions:

Twenty-one, including nine indecent exposures in 2014 and two indecent exposures in 2006. 

Conclusions:

Count 1:

18 months' imprisonment.

Breach offences in 2014:- No separate penalty.

Probation Order imposed in 2014 to be discharged.

Order under Article 5(1) of the Sex Offenders (Jersey) Law 2010 that a period of 5 years elapse before the accused is permitted to apply to no longer be subject to the notification requirements to commence from the date of sentence sought.

Restraining Order sought to commence from date of sentence for a period of 5 years under Article 10(4) with the following conditions:-

i)       That the defendant produce to any police officer, forthwith on request, at any time, any computer or any device which may access the internet, or any telephone or mobile device, or any device which can store photographs electronically, which belongs to him or is in his possession, it being noted that such requests may be made anywhere, including by the police attending at the defendant's place of residence. 

ii)      That the defendant is prohibited from owning, or having in his possession, or having access to, any device capable of accessing the internet unless it has the capacity to retain and display the history of internet use and he ensures that such history is not deleted. 

iii)      That the defendant is prohibited from knowingly being alone with any female under the age of 16 years, except in the presence of that person's parent, guardian or an adult over the age of 21 who is aware of his convictions.  This prohibition does not operate to prohibit contact with females under the age of 16 that is inadvertent and unavoidable in the course of the defendant's lawful duties. 

iv)      That in circumstances where the defendant finds himself alone with a female under the age of 16, he has a positive duty to remove himself from that situation as soon as reasonably possible.

Sentence and Observations of Court:

Conclusions granted.

Ms E. L. Hollywood, Crown Advocate.

Advocate C. M. Fogarty for the Defendant.

JUDGMENT

THE BAILIFF:

1.        The defendant is indicted with one count of indecently exposing his person on the beach at St Aubin's Bay on 9^th April this year.  As a result of his guilty plea to that offence he is also in breach of a Probation Order that was imposed by the Royal Court on 11^th April last year and he falls to be sentenced again for the offences for which he was before the Court on that occasion, nine counts of exposing his person and one count of making indecent photographs of children.  Starting with the offence which brings him before the Court today, he was found by two girls aged 12 and 13 near the West Park bathing pool; he was apparently playing with himself, pushing his penis up and down, wearing only a greenie/grey t-shirt.  When the girls passed him a few minutes later he was masturbating whilst staring at them.  Later on the same occasion two other girls saw him wearing a t-shirt and nothing else. 

2.        The girls were clearly concerned and one of them told the investigating police officers that she was a bit worried that something bad was going to happen, "I was worried he was going to come towards us, I was a bit intimidated really."  Mr Lochhead, that reaction shows why this offence is so serious because you are in danger of putting girls in fear, intimidating them, and the Court is bound to take the offences seriously. 

3.        The Court's view is that the Crown's conclusions are correct.  The Court recognises all that has been said by Advocate Fogarty on your behalf, particularly gives credit for the guilty plea which has been entered and we note all the things that are in the background reports and ultimately will be a matter for you to get such help on release as you can possibly get because this behaviour needs to be tackled and the causes of it need to be tackled otherwise you are going to find that sentences in both the courts here or in Scotland are bound to get more serious. 

4.        In the circumstances you are sentenced on the present Indictment on Count to 18 months' imprisonment.  As far as the breach offences are concerned there will be no separate penalty and the Probation Order is discharged. 

5.        I need also to deal with the question of the Sex Offenders (Jersey) Law 2010.  You are already subject to the notification requirements and we make a fresh order that the notification requirements apply to you as from today for a period of at least 5 years.  They continue to apply until you apply to the Court to have them disapplied to you but you cannot make that application until 5 years have passed from today. 

6.        As far as the Restrictive Orders are concerned you are already subject to some restrictive orders for a period of 5 years from April last year.  We make those same orders today so that they run for a period of 5 years from today and we add to those the two restrictive orders which are set out at paragraph 31 of the Crown's conclusions also to run for 5 years from today. 

"a.       You are prohibited from knowingly being alone with any female under the age of 16 years, except in the presence of that person's parent, guardian or an adult over the age of 21 who is aware of your convictions.  This prohibition does not operate to prohibit contact with females under the age of 16 years that is inadvertent and unavoidable in the course of your lawful daily activities;

b.        that in circumstances where you find yourself alone with a female under the age of 16 years, you have a positive duty to remove yourself from that situation as soon as reasonably possible."

And you will know that breach of the Restraining Orders is itself a criminal offence for which you can be sentenced. 

7.        So the Court sentences you accordingly to 18 months' imprisonment. 

Authorities

Sex Offenders (Jersey) Law 2010.

AG-v-Lochhead [2014] JRC 093.

R v Pedley [2000] WL 1629537.

R v Cosco [2005] EWCA Crim 207.

R v Smith and Ors [2012] 1 Cr App R (S) 82.

Sentencing Guidelines Council's Definitive Guidelines for Sexual Offences Act 2003.