Attorney-General (Qld) v Crutch - [2021] QSC 4

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General (Qld) v Crutch [2021] QSC 4

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v
JASON MATTHEW CRUTCH

(respondent)

FILE NO/S:

SC No 4452 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

2 February 2021

DELIVERED AT:

Brisbane

HEARING DATE:

31 August 2020; 1 February 2021

JUDGE:

Lyons SJA

ORDER:

Orders in terms of the orders in Attachment ‘A’.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where application made seeking orders that the respondent be subjected to continued detention or released subject to supervision orders – where, before the matter was finalised, an interim order was made which saw the respondent released subject to that order – where the court considered the alleged contravention of the interim supervision order, and the originating application for a Division 3 order – whether there was an unacceptable risk that the respondent would commit a serious sexual offence if released without a Division 3 order

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 3, s 5, s 9A, s 11, s 13, s 13A, s 16, s 20, s 21, s 22, s 43AA

Attorney-General (Qld) v Francis [2007] 1 Qd R 396
Attorney-General for the State of Queensland v KAH [2019] QSC 36
Attorney-General for the State of Queensland v Lawrence [2009] QCA 136
Attorney-General for State of Queensland v S [2020] QSC 164

Turnbull v Attorney General for the State of Qld [2015] QCA 54

COUNSEL:

M Maloney for the applicant

J P Benjamin for the respondent

SOLICITORS:

Crown Law for the applicant

Cridland Hua for the respondent

The Applications before the Court

Pursuant to an Originating Application filed on 21 April 2020, the Attorney-General sought Division 3 orders pursuant to s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (‘the DPSOA’ or ‘the Act’) that the respondent, Jason Matthew Crutch, be subjected to continued detention under s 13(5)(a) of the Act, or released subject to supervision orders under s 13(5)(b) of the Act.
The matter came on for final hearing on 31 August 2020 but was not able to be finalised on that date. An Interim Order was made pursuant to s 9A(2)(a) of the Act which contained 48 conditions. The respondent was released subject to that Order on 9 September 2020.
The respondent, however, allegedly breached that Order within days of his release and, on 24 September 2020, he was brought before the Court pursuant to a warrant under s 20 of the Act as a result of those contraventions and was ordered to be detained in custody pursuant to s 21 of the Act.
The respondent was charged with breaching conditions (5), (19), (21), (37) and (40) of the Interim Supervision Order and pleaded guilty on 3 December 2020. He was sentenced to a head sentence of 9 months’ imprisonment with a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] QSC 4
Decision Date: 2 February 2021

CaseChat Overview and Summary

The Attorney-General for Queensland filed an application seeking orders under Division 3 of the Sentencing Act 1992 (Qld) in relation to the respondent, Crutch. The court was required to decide whether there was an unacceptable risk that the respondent would commit a serious sexual offence if released without a Division 3 order. The case involved the consideration of expert evidence and the alleged contravention of an interim supervision order. The court needed to balance the respondent’s history of sexual offending against minors with the recommendations of the experts and the impact of his various conditions, including Autism Spectrum Disorder, Post-Traumatic Stress Disorder, Polysubstance Abuse Disorder, and Antisocial Personality Traits.

The court reviewed evidence from Dr Brown and Dr Aboud, both of whom assessed the respondent’s risk of reoffending. Dr Brown recommended a supervision order, initially considering a five-year period but later suggesting that a longer period, potentially ten years, might be appropriate due to the respondent’s treatment resistance and recent contraventions. Dr Aboud, on the other hand, concluded that the respondent presented a moderate-high unmodified risk of sexual reoffending but a low-moderate risk under a supervision order. He provided detailed recommendations for conditions that should be imposed if the respondent were to be released under supervision. The court needed to weigh these expert opinions against the respondent’s history and the potential for reoffending.

The court ultimately determined that there was an unacceptable risk that the respondent would commit a serious sexual offence if released without a Division 3 order. It accepted the experts’ recommendations and considered the respondent’s history of sexual offending and his conditions. The court found that the respondent’s conditions, particularly his Autism Spectrum Disorder and Antisocial Personality Traits, contributed to his risk profile. The court ordered that the respondent be subjected to continued detention and supervision orders as outlined in the attached terms. These orders were intended to manage the respondent’s risk and ensure public safety.

Orders

Orders of the court

Orders in terms of the orders in Attachment ‘A’.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Dr Brown in conclusion recommended a supervision order and, whilst she initially considered it would be for five years, she considered that given the difficulties the respondent faced within days of his release, she considers there is an argument that the period of supervision should be longer and that he will be very slow to assimilate internalised self-management strategies. Dr Brown stated that she would not be opposed to a supervision period of ten years given his young age, his active sexual drive, his treatment resistance and recent contraventions. Evidence of Dr Andrew Aboud, Consultant Psychiatrist Dr Aboud gave evidence on 31 August 2020 and provided Reports dated 15 August 2020 (received on 17 September 2020) and 20 January 2021. Dr Aboud had initially assessed the respondent at Wolston Correction Centre on 19 June 2020. Whilst he had prepared a written report he was unable to provide it to the Court at the time of the hearing due to the lockdown of several correctional centres. He considers that the respondent suffers from Autism Spectrum Disorder, Post-Traumatic Stress Disorder (secondary to being sexually assaulted in prison), Polysubstance (cannabis, alcohol, prescription drugs) Abuse Disorder and Antisocial Personality Traits with some psychopathic features. Dr Aboud considers that those conditions can explain his tendency toward some episodes of raised anxiety (including panic) and short-lived periods of low mood. Dr Aboud stated that it is hard to confidently conclude that his sexual offending against minors is associated with a specific paedophile drive, rather than to his migration toward children as being more vulnerable and easily procured and manipulated as victims. Dr Aboud was of the view that the respondent has benefited from participating in the HISOP while in custody. Overall he considered that the respondent presents a moderate-high unmodified risk of sexual reoffending, but a low-moderate risk of sexual re-offending in the context of a supervision order. Should he be released to a supervision order, Dr Aboud recommended that: “he be housed in a stable living arrangement in the first instance; be provided with assistance to build structure, routine and personal supports; be provided with clear directions and explanation of conditions; have access to a psychologist for individual therapy; remain abstinent of substances and alcohol; have no unsupervised access to children; be carefully and gradually progressed to circumstances of greater freedom and independence; be provided with medical assistance via a General Practitioner, to address any difficulties he experiences in respect of management of anxiety and/or mood (and in turn have recourse to specialist psychiatrist care, if these difficulties require such onward referral).”Report dated 15 August 2020 In his report dated 15 August 2020 (received on 17 September), Dr Aboud indicated that the respondent has clear evidence of Autism Spectrum Disorder (‘ASD’) but within the normal average intelligence range, as well as some mild features of ADHD and polysubstance abuse. He also considered that he manifests anti-social personality traits with some psychopathic features but stated that it was important to recognise that it is difficult to distinguish his anti-social and psychopathic traits from his symptoms of ASD and ADHD. He also stated that given his previous assaults in prison, he has also described some features of post-traumatic stress disorder (‘PTSD’).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Attorney-General (Qld) v Crutch [2021] QSC 4
PARTIES:	ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v JASON MATTHEW CRUTCH (respondent)
FILE NO/S:	SC No 4452 of 2020
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	2 February 2021
DELIVERED AT:	Brisbane
HEARING DATE:	31 August 2020; 1 February 2021
JUDGE:	Lyons SJA
ORDER:	Orders in terms of the orders in Attachment ‘A’.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where application made seeking orders that the respondent be subjected to continued detention or released subject to supervision orders – where, before the matter was finalised, an interim order was made which saw the respondent released subject to that order – where the court considered the alleged contravention of the interim supervision order, and the originating application for a Division 3 order – whether there was an unacceptable risk that the respondent would commit a serious sexual offence if released without a Division 3 order Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 3, s 5, s 9A, s 11, s 13, s 13A, s 16, s 20, s 21, s 22, s 43AA Attorney-General (Qld) v Francis [2007] 1 Qd R 396 Attorney-General for the State of Queensland v KAH [2019] QSC 36 Attorney-General for the State of Queensland v Lawrence [2009] QCA 136 Attorney-General for State of Queensland v S [2020] QSC 164 Turnbull v Attorney General for the State of Qld [2015] QCA 54
COUNSEL:	M Maloney for the applicant J P Benjamin for the respondent
SOLICITORS:	Crown Law for the applicant Cridland Hua for the respondent