Gerald Hewitt: suspended jail term
A man who stuck his head and arm under a changing cubicle at Nenagh Leisure Centre while a woman was inside changing has been given a suspended jail sentence by Nenagh Court.
Gerald Hewitt, 47, of Cooleen, Birdhill, had pleaded not guilty to threatening behaviour with the intention to provoke a breach of the peace or to being reckless with the intent to provoke the peace under the Public Order Act at the local swimming pool on November 1, 2015.
He was sentenced to three months in prison, suspended for two years, on condition he keep the peace in his own bond of €500.
Mr Hewitt has one previous conviction for sexual assault for which he received a tw0-year suspended sentence.
The case had originally been heard last year by Judge Elizabeth MacGrath when the judge adjourned it to consider submissions on whether or not Mr Hewitt had been charged under the correct offence and whether or not the swimming constituted a public place.
The court had heard Mr Hewitt was charged under the Public Order Act because Ireland had no “peeping Tom” legislation.
At the original court case in May 2017, the injured party claimed that Mr Hewitt spied on her while she was changing at Nenagh Leisure Centre.
She told the court that she met the accused, whom she did not know, in the sauna. They chatted briefly before she left to use the Jacuzzi.
Later, the female, who was in her early 20s, went to the unisex locker and changing area. She had a shower in the women's showering facility before going into a cubicle to change.
While drying herself, the woman said she looked down and noticed someone looking up at her from the gap between her cubicle and the one adjacent to it.
She “locked eyes” with the man she had met in the sauna earlier.
She identified this man in court as Mr Hewitt.
Witness told the court that she screamed and pulled her towel around her.
She then ran out and called the lifeguards' attention. She said Mr Hewitt ran out of the changing rooms.
The young female said the incident made her feel “totally invaded”.
Since then, she did not feel comfortable going into any toilet or cubicle with a space beneath the partition.
Cross-examined by Kenny Kerins, BL, she said she did not feel threatened when talking to the defendant in the sauna.
It was put to her that Mr Hewitt dropped his mobile phone and reached to retrieve it, though she said she did not see any phone.
Lifeguard and gym instructor Breda Barry said she heard the scream and immediately responded. She ran into the changing area and saw the injured party with her towel around her.
Ms Barry was informed that the defendant had put his head under the changing cubicle before then running away.
Ms Barry ran outside and saw Mr Hewitt hurrying towards a car. She said that she and the defendant made eye contact.
She noted the registration number of the car and went back to the injured party, who was “hysterical”.
The Gardaí were contacted straight away.
Garda Maureen Finnerty gave evidence of arriving at the scene and meeting the woman, who told her that a man had put his head into her cubicle while she was changing.
Garda Finnerty carried out a check on the vehicle and called to the registered address of Chapel Lane, Birdhill.
Mr Hewitt denied all knowledge of the incident, though he said he may have dropped his phone and he did hear a girl scream. He said he did not look under the cubicle.
In a cautioned statement, the defendant said he did not know why the woman had been surprised and “paid no heed” to it.
He said he reached out to get his phone but denied looking at anyone. He said he did not see anyone following him out of the leisure centre.
Garda Finnerty said CCTV footage of the centre was examined. Mr Hewitt could be seen “leaving in a hurried state” and Ms Barry following him out.
Mr Kerins pointed out that the defendant was charged under the Public Order Act. He contended that a changing cubicle was a private place, locked from the inside, and therefore not within the remit of Public Order legislation.
Mr Kerins also questioned whether the incident could be viewed as a breach of the peace.
Referring to case law in that regard, he said the alleged behaviour of his client was not conducive to an offence under the Public Order Act.
Insp Seamus Maher contended that the incident did occur in the public place, the same as if it had happened in the toilet of a pub.
Insp Maher said the behaviour of the defendant was reckless; his actions made the injured party feel threatened.
Judge MacGrath noted that the incident could be termed a “peeping Tom offence”, for which there was no legislation. She agreed with Insp Maher that the alleged offence occurred in a public place but agreed that Mr Kerins had a point in relation to the behaviour.
Judge MacGrath said she would give the defence and prosecution more time to make further submissions on the matter while she would also review the evidence. The case was adjourned until May 12, 2017 and further adjourned to last December when, in his direct evidence, Mr Hewitt said that he worked for a transport company.
"I am sorry if I caused upset but there was no intention to," he said.
Mr Hewitt said he was in the sauna and then went to the changing room.
"My phone fell and I reached in to pick it up. I went to put my pants on and it fell out of my pocket. I reached in and realised there was somebody in there. I just got dressed and left as quick as possible. I had no intention to threaten or abuse anybody," he said.
Asked by Insp Maher under cross-examination, if he could have taken any other action, Mr Hewitt said it had all "happened so fast".
Asked if he knew the woman was changing he said he thought all the cubicles were empty as they had been all empty when he went into his cubicle.
When he heard her scream he picked up his phone and left.
Mr Hewitt did not contact any staff member because he was "just embarrassed".
He told Judge MacGrath he had bent down and put his head into the other cubicle.
"Were you looking at the girl?" asked the judge.
"Yes. I briefly looked up and saw a girl. The penny dropped when she screamed," he said.
Mr Kerins submitted that there was evidence that the cubicle had been unoccupied when Mr Hewitt entered his. There was no intention to threaten or abuse anybody and Mr Hewitt had not been reckless.
Judge MacGrath adjourned her decision until January 12, 2018, when she found Mr Hewitt guilty.
The case was then adjourned to February when Judge MacGrath ruled that Mr Hewitt had been in a public place when the offence was committed, his action had been threatening under the Public Order Act and his actions had been reckless.
Judge MacGrath convicted Mr Hewitt, saying his actions “had not been the actions of a gentleman who had made an error and was embarrassed”.
The court was told Mr Hewitt had one previous conviction for sexual assault for which he received a two-year suspended sentence.
She adjourned the case for sentencing on February 22.