R v Crouch - [2024] SASC 57

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

R v CROUCH
[2024] SASC 57
Judgment of the Honourable Justice Stein
19 April 2024
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS
The respondent pleaded guilty to aggravated possess child exploitation material and possess child exploitation material contrary to s 63A(1) of the Criminal Law Consolidation Act 1935 (SA).
The applicant seeks an indefinite detention order pursuant to s 57 of the Sentencing Act 2017 (SA). The applicant submits that it is appropriate to make an order for indefinite detention in circumstances where the Court can be satisfied the respondent is incapable or unwilling to control his sexual instincts, where he poses a significant risk to the safety of the community, and where the risk will not be substantially ameliorated by any alternative order.
The respondent accepted that his prior offending enlivened s 57 of the Sentencing Act 2017 (SA) and that the court could be satisfied that the respondent is unwilling to control, his sexual instincts. The respondent submitted however that the Court should not exercise the discretion as the protection of the community is not required primarily because there has been no escalation in offending and no contact offending since 2006.
Held:
1.It is appropriate, in all the circumstances, to grant the application for an indefinite detention order under s 57 of the Sentencing Act 2017 (SA).

Sentencing Act 2017 (SA) s 57; Criminal Law Consolidation Act 1935 (SA) s 63A, referred to.

R v CROUCH
[2024] SASC 57
Criminal: Application

STEIN J: The Director of Public Prosecutions (“the Director”) has applied for an order that David Ross Crouch be detained in custody until further order pursuant to s 57(7) of the Sentencing Act 2017 (SA) (“the Act”).
The Director submitted that there is a cogent evidentiary basis to support the conclusion that Mr Crouch is unwilling to control his sexual instincts. The Director contended the Court should exercise the discretion to detain Mr Crouch in custody until further order on the grounds that, if given the opportunity, there is a significant risk that Mr Crouch will not only engage in child exploitation material but again commit contact sexual offending.
Mr Crouch relied on a number of matters in opposing the application, including that he has not committed contact offending since 2006 and that there has been no escalation of his offending.
I have considered carefully all of the material before me. I have accepted the opinions of the psychiatrists that Mr Crouch is unwilling to control his sexual instincts. For the reasons I explain below, I have determined to exercise the discretion to make an order detaining Mr Crouch in custody until further order.
Chronology of offending, sentences imposed and treatment programs
Mr Crouch’s history of relevant sexual offending and his engagement in treatment programs is relevant. I set…

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.

Continue reading R v Crouch

Details

AGLC: R v Crouch [2024] SASC 57
Case: [2024] SASC 57
Decision Date: 19 April 2024

CaseChat Overview and Summary

The case of R v Crouch involved the defendant, Mr Crouch, being sentenced for aggravated possession and possession of child exploitation material. The sentencing was carried out by the court, which imposed a prison term of five years, reduced to three years and nine months due to Mr Crouch's guilty plea, with a non-parole period of three years. The commencement date for both the head sentence and non-parole period was set at 16 March 2022. The court was required to consider the nature and severity of Mr Crouch's crimes, the risk he posed to the community, and the appropriate measures to ensure public safety.

The primary legal issue the court had to decide was whether an order for the indefinite detention of Mr Crouch was necessary to adequately protect the community. This decision hinged on the assessment of Mr Crouch's risk to reoffend, particularly in light of his history of similar offences and his possession of a large quantity of child exploitation material. The court needed to weigh the evidence provided by psychiatrists regarding Mr Crouch's mental health and risk of reoffending against the potential effectiveness of alternative measures such as an extended supervision order.

The court found that the evidence supported the conclusion that Mr Crouch posed a high risk to the community, particularly to children. The psychiatrist's assessment, along with Mr Crouch's previous offending while on an extended supervision order, indicated that lesser restrictions would not provide adequate protection. The court determined that an order for indefinite detention was necessary to ensure the safety of the community, especially the most vulnerable members such as children. Consequently, the court ordered Mr Crouch to be detained in custody until further order under the relevant provisions of the Sentencing Act.

Orders

Orders of the court

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Background

Background to the litigation

For the charges of aggravated possession and possession of child exploitation material I sentenced Mr Crouch to imprisonment for a period of five years, reduced to three years and nine months on account of his guilty plea, with a non-parole period of three years. I determined the commencement date for both the head sentence and non-parole period was 16 March 2022.Relevant background to the charges of aggravated possession and possession of child exploitation material On 16 March 2022, police searched Mr Crouch’s residence and identified a large number of files of both aggravated and basic child exploitation material located across seven electronic devices being a hard disk drive, four USBs, three memory cards and a telephone. A total of 4,635 files of aggravated child exploitation materials and 7,979 files of child exploitation material were located. The files were subsequently categorised as falling between aggravated category 1 to aggravated category 5 and basic categories 1 to 6. The majority of the files fell within the Child Exploitation Tracking Scheme category 1 with a significant number in categories 2, 3 and 4 and some in category 5 and 6. There were 890 files of aggravated category 4 material and 1,278 files of category 4 material and 15 files of aggravated category 5 material and 277 files of category 5 material. The Child Exploitation Tracking Scheme Category 1 refers to images of children likely to cause offence to a reasonable adult but where there is no actual sexual activity occurring. Category 2 refers to material showing sexual acts between children only including non-penetrative sexual activity between children or solo masturbation by a child. Category 3 refers to material which features adults with a child in any non-penetrative sexual activity. Category 4 refers to material which shows penetrative sexual activity between children or between a child and an adult. Category 5 contains images of children likely to cause offence to a reasonable person where a child is subjected to sadism, torture, bestiality, or humiliation. Category 6 refers to visual or audio representations of child pornography in an image which does not appear to be a genuine photograph or feature a real child. Any depiction which shows a child who appears to be under 14 years of age is an aggravated category. The investigating officer who reviewed the electronic devices said the images and videos he viewed during the review were of the worst kind he has viewed in his experience. Images included penetrative penis-vagina sex between adults and infant children. He identified 149 videos and 741 pictures depicting penetrative sexual activity between adults and children under the age of 14 and most of the images were of children with an estimated age of between four and 10 years old. A number of other documents were also located. Mr Crouch had possession of digital copies of court transcripts containing graphic evidence given by children of their own experiences of sexual abuse.

Evidence

Evidence Before The Court

While such medication may be used in the treatment of prostate cancer, Mr Crouch was not receiving such medication. Evidence of Dr Raeside Dr Raeside considered the possession of child exploitation material in 2022 represented a continuation of a similar pattern of Mr Crouch’s previous offending. In his view, the fact that Mr Crouch was accessing court transcripts and previous images suggested an ongoing interest and a high risk of moving to contact offending if the opportunity presented itself. He said Mr Crouch has had an ongoing pattern of offending when not incarcerated and when he has had the opportunity to offend. Despite periods of imprisonment, not only had Mr Crouch failed to not re-offend but he also had breached conditions. This suggested to Dr Raeside that the Court’s supervision order conditions were insufficient to control Mr Crouch. Mr Crouch’s most prominent diagnoses are chronic post-traumatic stress disorder and a mixed borderline and antisocial personality disorder. Dr Raeside said a longstanding maladaptive pattern of behaving is not a mental illness and is not amenable to medication but is a mental health problem. Dr Raeside diagnosed Mr Crouch with non-specific paraphilia, denoting any inappropriate sexual arousal, sexual behaviour or deviancy including paedophilia. Mr Crouch’s past offending suggested paedophilia or paedophilic tendencies but Mr Crouch has sexual interest in adults as well. He said Mr Crouch had progressed to more interest in children and into further ranging sexual deviance and the breadth of the diagnosis generated more concern because of Mr Crouch’s sexual deviancy. Dr Raeside explained the factors used to predict a risk of re-offending being likelihood, magnitude, frequency and imminence. Dr Raeside explained the importance of not only focussing on the likelihood of an offender committing a further offence but considering whether the likelihood was imminent or in the future, considering the severity or magnitude of the potential offending and the frequency of such behaviours in the past. In the case of Mr Crouch, Dr Raeside opined that the risk of potential offending was high because Mr Crouch has had contact offences against children in the past and remains at risk of contact offending in the future. Dr Raeside predicted the potential for re-offending to occur soon after being released based on Mr Crouch’s previous behaviour which suggested he re-offended relatively soon after release from custody when given the opportunity to do so. Dr Raeside considered there was a likelihood Mr Crouch would again engage in such behaviour which could involve online child exploitation material or may progress to contact offending. While a clear and strong association between viewing online images and progressing to contact offending has not been demonstrated, in the case of Mr Crouch, Dr Raeside thought Mr Crouch would be at high risk of either online pornography or contact offending because of his past offending. Dr Raeside was of the view that accessing court transcripts for the sexual arousal of re-living trauma the victims went through, accessing images of his prior victim, and accessing the eBook suggesting how to contact offend dramatically increased the risk of Mr Crouch engaging in further contact offending.

Decision

Reasons for decision

I have considered the submission that the application for an order should be deferred while Mr Crouch completes his sentence. Mr Crouch’s prostate cancer levels are stable. He will not age markedly while serving the balance of his sentence. His rehabilitation prospects are pessimistic. The material before me does not support the conclusion that the intervening period of custody may have considerable impact on Mr Crouch’s risk profile or the factors relevant to the exercise of my discretion. I am not persuaded that there is sufficiently good reason to warrant deferring consideration of the application until the end of Mr Crouch’s sentence. Conclusion There is ample evidence that Mr Crouch’s risk to the community is high. The members of the public particularly at risk of harm from Mr Crouch are children, including young children of both genders, who are among the most vulnerable members of the community. Given that level of risk, the question is whether an order for indefinite detention is required to ensure adequate protection or some lesser restriction on the liberty of Mr Crouch would suffice. The opinions of the psychiatrists together with Mr Crouch’s previous offending while on an extended supervision order supports the view that any such order would be insufficient to provide adequate protection for the community, including the group of the community particularly at risk. In my view, based on all of the matters to which I have referred above, an order for the indefinite detention of Mr Crouch is appropriate.Orders I order that Mr Crouch be detained in custody until further order pursuant to s 57(7) of the Sentencing Act. In accordance with s 57(13) of the Sentencing Act such detention will commence on the expiration of Mr Crouch’s term of imprisonment.

Ratio Decidendi

Legal Principle Established

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