Jersey Unreported Judgments

Inferior Number Sentencing - indecent exposure.

[2017]JRC214

Royal Court

(Samedi)

15 December 2017

Before     :

T. J. Le Cocq, Esq., Deputy Bailiff, and Jurats Grime and Christensen.

The Attorney General

-v-

Kevin Andrew Lochhead

Sentencing by the Inferior Number of the Royal Court, to which the accused was remanded following conviction at the Magistrate's Court on 22^nd September, 2017 on the following charge:

1 count of:

Indecent exposure

Age:  51.

Plea: Not guilty.

Details of Offence:

On 8^th July, 2017, at approximately 8:30pm, (it was still daylight due to it being summer) four teenage girls (all 15 years of age) (referred to as the "girls") were sitting on the swings in the children's playground at People's Park ("the park").  Three of the girls saw the defendant standing close to the edge of the playground.  He was standing on raised ground in an open area approximately seven metres away from the girls.  The defendant was wearing a cap, sunglasses, a green t-shirt and beige shorts, he was also carrying a backpack.  The defendant's shorts were unzipped; therefore all three of the girls could clearly see the defendant's penis and that he was urinating.  The girls were in clear sight of the defendant and he knew that the girls were nearby. 

Witness 1 stated the defendant continued to hold his penis for 20 - 30 seconds after he had finished urinating.  Witness 2 saw the defendant urinating but was so disgusted that she turned away.  Witness 3 also saw the defendant urinating and saw the defendant moving his hand around his penis for approximately half a minute after he had finished urinating. 

Witness 1 then shouted at the defendant asking "What are you doing?"  The defendant left shortly afterwards.  As the defendant left Witness 4 took a photograph of him on her mobile telephone. 

The four girls then walked to Witness 1's house where they spoke to Witness 1's parents.  Witness 1's mother reported the incident to the States of Jersey Police.  Witness 1 attended at Police Headquarters and identified the defendant as being the man she had seen.

Details of Mitigation:

Limited remorse.

Previous Convictions:

Seven previous convictions for 20 offences.  The most relevant are the breach offences (2014), and two further offences of indecent exposure in 2006 and the indecent exposure in 2015.

Conclusions:

Count 1:

2 years' imprisonment.

Order sought 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 (15^th December, 2017).

The Crown is seeking a continuation of restraining orders imposed further to the defendant's 2014 and 2015 convictions and for the restrictions to remain in place for a period of 5 years from today's date (15^th December, 2017) in the following terms:

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 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 years, he has a positive duty to remove himself from that situation as soon as reasonable possible;

v)             Is prohibited from going within 10 metres of children's play areas.

Sentence and Observations of Court:

Count 1:

18 months' imprisonment.

Order made 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 (15^th December, 2017).

Order made for the continuation of restraining orders imposed further to the defendant's 2014 and 2015 convictions and for the restrictions to remain in place for a period of 5 years from today's date (15^th December, 2017) in the following terms:

vi)            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;

vii)           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 capacity to retain and display the history of internet use and he ensures that such history is not deleted;

viii)          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;

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

x)             Is prohibited from going within 10 metres of children's play areas.

Her Majesty's Attorney General appeared for the Crown.

Advocate J. W. R. Bell for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        You have been referred to this Court for sentence following a finding of guilt after a trial by the Magistrate's Court on one count of indecent exposure.  You have been referred to us because you have previous convictions for this offence, one in 2016 and the other in 2015.  You have a number of previous convictions for other similar offences. 

2.        The facts have been explained by the Crown.  You exposed yourself to three 15 year old girls at the children's playground at People's Park.

3.        We agree with the Crown's suggestion as to the aggravating factors in this matter, specifically that your record of relevant previous convictions is a poor one; that you committed the offence in close proximity to a children's play area, that you are in breach of Restraining Orders imposed by the Court, and all four complainants were 15 year olds.  One of them had also been a complainant in your 2015 offending.

4.        You denied the offence and the matter went to trial.  This, of course, meant that the girls, then witnesses, were subject to cross-examination and the stress of a trial.  You do not have therefore the benefit of a guilty plea.  We do not accept that you were required to plead not guilty in the way that has been suggested to us because you could have pleaded guilty on certain terms and if the Crown had not accepted those terms, then it would have been a matter for the Crown whether it wished to have the matter determined by way of a Newton Hearing. 

5.        The social enquiry report identifies the trend in your sexually-motivated offending, this being the thirteenth offence of this nature, and you are described as posing a very high risk of sexual recidivism.  You did not accept your culpability immediately and therefore we must view your expressions of remorse in that context.  We do not see a great deal by way of personal mitigation available to you. 

6.        Dealing with the Sexual Offences Law part of this matter we agree that it should be 5 years from today's date before you can apply to have the reporting restrictions lifted in your case and we grant the restraining orders sought by the Crown with the addition of that as set out in paragraph 5 of the conclusions relating to proximity of children's play areas and that also for a period of 5 years from today's date.

7.        We turn now to the question of sentence.  We are dealing here with a single count of indecent exposure which did not involve masturbation and we accept that but for your previous convictions you would almost certainly have been dealt with by the Magistrate's Court.  But you do have previous convictions and those previous convictions are in some cases very recent indeed.  We have a duty to protect young people from this kind of traumatic behaviour.  We accordingly view this offending as serious and we think it must be met with a significant custodial sentence. 

8.        We do however think that the period of 2 years moved for by the Crown is too long and you are sentenced to 18 months' imprisonment. 

Authorities

Sexual Offenders (Jersey) Law 2010.

AG-v-Lochhead [2015] JRC 168.

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.