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Sunday, 5 May 2013

Get a room, or get a cell? R v Vaiciulevicius [2013] EWCA Crim 153

R v Vaiciulevicius [2013] EWCA Crim 153 was an appeal against sentence for an offence of outraging public decency, which is one of the four types of public nuisance I discussed here.

When the case is added to Bailii’s database, it should be accessible at this link, but until then, I’ve put a PDF here.

The Court of Appeal stated the facts this way at [2]:


On a Sunday afternoon in early September 2012 the appellant and a woman, both heavily intoxicated, had consensual sexual intercourse in a public park. They had made no attempt to conceal their activity and were visible to other persons in the park including, unsurprisingly, young children who were playing there. They had removed their lower clothing. They stopped only when spoken to by police officers. When later interviewed the applicant admitted the offence and said that he was disgusted by his own behaviour.

Because the offence is a common-law offence, there is little guidance to the Courts for an appropriate sentencing range. The Court considered similar offences, but then said:


[11.] The aggravating features of the present offence are obvious. It was committed in public, with a complete disregard for the shock or distress that it was likely to cause anyone who witnessed it. The presence nearby of young children was a serious aggravating feature. Whether or not the applicant specifically noted their proximity, it was readily foreseeable that they would be playing in the park on a Sunday afternoon. The applicant’s intoxication was a further aggravating feature. So too were his previous convictions, albeit for different types of offence, and the fact that he had so recently
been released from prison.

[12.] For all those reasons, and notwithstanding that this was the first time that the applicant had committed an offence of this nature, the judge was, in our view, entitled to view this case as a serious one.

[13.] We cannot accept Mr Magee’s submission that a sentence of immediate imprisonment was wrong in principle. In our judgment, the learned judge was entitled to conclude that this offence passed the custody threshold and that only an immediate sentence of imprisonment would suffice.

The Court substituted the original 6 month jail sentence with 3 months instead! Seems to be a bit of a puritan overkill to me. Of course no one wants to see folks demonstrating their mojo at the local park, but it does seem a bit disproportionate to the harm. Seems then the message is definitely, “Get a room, or you’ll get a room all right.”



1 comment:

Jeremy Gans said...

More detail on the incident here: http://www.lynnnews.co.uk/news/latest-news/king-s-lynn-magistrates-told-of-couple-s-daytime-sex-in-park-1-4222246.

The defendant's partially successful appeal raises an interesting question of parity for his partner, who also got six months, including for the apparent aggravating feature that the crime occured on the 'day of rest'!: http://www.huntspost.co.uk/news/latest-news/woman_who_had_sex_in_park_is_jailed_but_the_man_convicted_with_her_goes_on_the_run_1_1689526

There are differences between the pair. On the one hand, he didn't show up for his sentencing. On the other, he (and apparently not her) attracted 'local public vilification': http://www.fenlandcitizen.co.uk/news/crime-and-courts/sex-in-park-woman-jailed-1-4463948