Jersey Unreported Judgments

Inferior Number Sentencing - exposing person - making indecent photographs of children.

[2014]JRC093

Royal Court

(Samedi)

11 April 2014

Before     :

Sir Michael Birt, Kt., Bailiff, and Jurats Morgan and Nicolle

The Attorney General

-v-

Kevin Andrew Lochhead

Sentencing by the Inferior Number of the Royal Court, following guilty pleas to the following charges:

9 counts of :	Exposing person (Counts 1-9).
1 count of:	Making indecent photographs of children, contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law 1994 (Count 10).

Age:  47.

Plea: Guilty.

Details of Offence:

Counts 1-9

Between August 2012 and July 2013, Lochhead exposed himself to a total of at least 20 girls between the ages of 12 and 16.  The offences took place on busy beaches, in public parks, at bus stops and at Liberation Station.  One girl was the victim of three offences.  In three offences (Counts 2, 5 and 9) he masturbated in front of the girls, two of whom were only 12.  He was identified as several of the girls took photographs. 

Count 10

Following his arrest, Lochhead's computer was seized.  Forensic examination revealed that he had downloaded nine Level 1 indecent images of children.  He had also viewed a great deal of legal but relevant images, including those showing nudism (including children), voyeurism and indecent exposure. 

In interviews, which took place over a month as the offences were linked to him, Lochhead initially denied the offences, but eventually admitted to some of them. 

Assessed as being at moderate-high risk of sexual reconviction. 

Details of Mitigation:

The Crown

Guilty plea, partial cooperation with the police, expression or remorse. 

The Defence

Prosecution relatively protracted, ready to engage in therapy, voluntarily working with probation. 

Previous Convictions:

11, including two indecent exposures in 2006. 

Conclusions:

Count 1:	6 months' imprisonment.
Count 2:	2 years' imprisonment, concurrent.
Count 3:	6 months' imprisonment, concurrent.
Count 4:	6 months' imprisonment, concurrent.
Count 5:	2 years' imprisonment, concurrent.
Count 6:	6 months' imprisonment, concurrent.
Count 7:	6 months' imprisonment, concurrent.
Count 8:	6 months' imprisonment, concurrent.
Count 9:	2 years' imprisonment, concurrent.
Count 10:	3 months' imprisonment, consecutive.

Total: 2 years and 3 months' imprisonment.  

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 conviction 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.

Forfeiture and destruction of the computer listed in the charges sought. 

Sentence and Observations of Court:

Count 1:	120 hours' Community Service Order, equivalent to 6 months' imprisonment, plus a 2 year Probation Order.
Count 2:	210 hours' Community Service Order, equivalent to 15 months' imprisonment, plus a 2 year Probation Order concurrent.
Count 3:	120 hours' Community Service Order, equivalent to 6 months' imprisonment, plus a 2 year Probation Order concurrent.
Count 4:	120 hours' Community Service Order, equivalent to 6 months' imprisonment, plus a 2 year Probation Order concurrent.
Count 5	210 hours' Community Service Order, equivalent to 15 months' imprisonment, plus a 2 year Probation Order concurrent.
Count 6:	120 hours' Community Service Order, equivalent to 6 months' imprisonment, plus a 2 year Probation Order concurrent.
Count 7:	120 hours' Community Service Order, equivalent to 6 months' imprisonment, plus a 2 year Probation Order concurrent.
Count 8:	120 hours' Community Service Order, equivalent to 6 months' imprisonment, plus a 2 year Probation Order concurrent.
Count 9:	210 hours' Community Service Order, equivalent to 15 months' imprisonment, plus a 2 year Probation Order concurrent.
Count 10:	30 hours' Community Service Order, equivalent to 1 week's' imprisonment, plus a 2 year Probation Order consecutive.

Total: 240 hours' Community Service Order, equivalent to 18 months' imprisonment, and a 2 year Probation Order.

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 conviction made. 

Restraining Order made to commence from date of sentence (11^th April, 2014) for a period of 5 years under Article 10(4) with the following conditions:-

ii)         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. 

Forfeiture and destruction of the computer listed in the charges ordered. 

Ms E. L. Hollywood, Crown Advocate.

Advocate E. Wakeling for the Defendant

JUDGMENT

THE BAILIFF: 

1.        You exposed yourself in public in the presence of young teenage girls, usually on the beach, once in the bus station and another time at a bus stop, on some nine separation occasions, three of them in the summer of 2012 and six in the summer of 2013.  On three of those occasions you were masturbating, albeit not to ejaculation.  Following your arrest the police found nine indecent images of children on your computer, but it is right to say that these were at Level 1 on the relevant scale, which means that they were erotic posing but no sexual activity in those images.  It is not your first offence for exposing yourself because in 2006 you appeared before the Magistrates Court for two such offences and you were given a suspended sentence of 3 months' imprisonment. 

2.        Your advocate has put before us all the things that can be said on your behalf.  She has emphasised your guilty plea and particularly your remorse, and we have read your letter.  She supports that by reference to the probation report which assesses your remorse as being genuine.  She points to your good work record and the reference. 

3.        Nevertheless, normally such offences, particularly where there is an element of something such as masturbation, will attract a prison sentence.  In this case the Probation Service and the psychological report recommend against that course.  They say it would achieve nothing in terms of addressing your issues.  They recommend that there be a Probation Order which enables you to undertake the necessary courses to make sure that those issues are addressed.  What has particularly influenced us is that you have in fact been doing this voluntarily with the Probation Service and with others since your arrest back in July of last year.  In all the circumstances we have just been satisfied that society's best interests are served by making sure you get proper treatment to address these issues so that you do not do it again, rather than by sending you to prison, where the likelihood is that you would come out with the problems unaddressed, or at any rate not addressed so satisfactorily.  So we are going to agree with the recommendation of the Probation Service. 

4.        We are going to impose a Probation Order for 2 years, concurrent upon each charge but, as well as getting the help from Probation and attending the courses which they direct you to attend, you must be punished for what you did.  So we are also going to impose Community Service, which means you can repay what you have done by working free for the community.  We are going to impose a total Community Service sentence of 240 hours' which we say is the equivalent of 18 months' imprisonment.  As a matter of detail it will be Count 1; 120 hours', Count 2; 210 hours', Count 3; 120 hours', Count 4; 120 hours', Count 5; 210 hours', Count 6; 120 hours', Count 7; 120 hours', Count 8; 120 hours', Count 9; 210 hours', Count 10; 30 hours', consecutive, making 240 hours' in all. 

5.        You will be placed on the Register and we say it must be at least 5 years before you can apply to get off that. 

6.        As to the Restraining Orders that have been asked for by the Crown, we are going to make the first two orders which relate to your computer because the Court takes the view that anyone who views indecent images does pose a threat of serious sexual harm to those unfortunate children who are the subject of the making of those images.  However, we are not going to make the other two orders as requested by the Crown as we do not think that that is necessary in this case, given the particular nature of your offending and the contents of the Probation Report.  We say that these Restraining Orders will last for 5 years from today. 

7.        The Court is giving you a chance.  You must not think that you have escaped lightly.  These courses that are to be undertaken with Probation are to be rigorous and you are to attend them.  If you do not do what the Probation Service tells you and attend all the necessary courses, if you do not turn up on the dot to do the Community Service and do it properly, if you were to re-offend, then you will be brought back here and at that stage the likely outcome is that you will be sent to prison. 

8.        We order the forfeiture and destruction of the computer.  

Authorities

AG v Godson and Crowley [2013] JRC 091.

R v Pedley [2000] WL 1629537.

R v Cosco [2005] EWCA Crim 207.

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

Sexual Offences (Jersey) Law 2007.

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