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Crous v Police

Crous v Police

Case [2023] NZHC 3765 18 December 2023

Child Protection (Child Sex Offender Government Agency Registration) Act 2016

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2023-485-061

[2023] NZHC 3765

BETWEEN
LOU-AN CROUS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 19 October 2023

Appearances:

V C Nisbet and E T Blincoe for the Appellant V E Squires for the Respondent

Judgment:

18 December 2023

JUDGMENT OF PALMER J

Counsel/Solicitors
V C Nisbet, Barrister, Wellington
Luke Cunningham & Clere, Crown Solicitor, Wellington

CROUS v POLICE [2023] NZHC 3765 [18 December 2023]

What happened?

The offending

[1] On 19 September 2018, when he was unemployed, Mr Lou-An Crous, aged 33, accessed a sub-folder of 55 files, labelled “baby” on the MegaUpload cloud storage service. Apart from one, all the files depicted sexual abuse and exploitation of very young children, some less than one year old. He downloaded four of the videos to his own account. That gave rise to a search warrant which was executed on 15 September 2022. Mr Crous was found to be in possession of 134 videos depicting penetrative and non-penetrative sexual abuse and exploitation of pre-pubescent children. He had saved these videos to his desktop and phone and accessed them on multiple occasions.

The charges

[2] Mr Crous was charged with 24 offences of possessing objectionable publications knowing, or having reasonable cause to believe, they were objectionable.1 Each offence is punishable by a maximum penalty of 10 years’ imprisonment or a fine of $50,000. Mr Crous cooperated with the Police, told them where his devices were and what the passwords were, and consented to the Police accessing his social media accounts. He accepted that what he had done was wrong and he could not justify it. He said he was going through a tough time and found himself going down a rabbit hole, but he knew that was not an excuse and knew what he did was wrong. He has no previous convictions. Mr Crous pleaded guilty to the charges.

The documents

[3]Several documents were available to the Judge at sentencing:

(a)Mr Crous wrote a letter of remorse to the sentencing Judge.

(b)His partner of eight years wrote a letter expressing her support of him.

1 Films, Videos and Publications Classification Act 1993, s 131A.

(c)In his psychiatric report, Dr Justin Barry-Walsh, considered Mr Crous was remorseful and willing to engage in rehabilitation but had a limited understanding of the pathway of his offending. In Dr Barry-Walsh’s opinion, Mr Crous had long-standing problems with depressed mood and likely had a depressive illness which worsened following the charges. He remains depressed with associated anxiety and has a history of significant alcohol abuse. There was a link between Mr Crous’ depression, alcohol use, and the offending. The offending and his use of pornography likely represented an attempt to regulate his mood. Dr Barry-Walsh assessed the risk of future offending as relatively low. With regard to sentencing, he highlighted Mr Crous’ vulnerability and expressed concern that his problems with depression will be worse if he is imprisoned, with an…

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 Crous v Police

Details

AGLC: Crous v Police [2023] NZHC 3765
Case: [2023] NZHC 3765
Decision Date: 18 December 2023

CaseChat Overview and Summary

Lou-An Crous appeals his sentence for possessing objectionable publications, which were videos depicting sexual abuse and exploitation of very young children. Crous, who has no previous convictions, pleaded guilty and cooperated with the Police. He expressed remorse and agreed to be assessed by a psychiatrist and the Department of Corrections. Crous' psychiatric report found he had long-standing problems with depressed mood, likely a depressive illness, and that his offending and use of pornography were attempts to regulate his mood. The Department of Corrections assessed him as low risk of reoffending but medium risk of harm to others if he does reoffend. Crous' appeal argues the sentence of 12 months’ imprisonment was manifestly excessive and that he should have been sentenced to home detention instead. The appeal was allowed and the sentence of imprisonment was quashed. The Court found the sentence was manifestly excessive as the District Court Judge gave too much weight to the seriousness of the offending and not enough to the offender’s personal circumstances and potential for rehabilitation. The Court also found that home detention was the least restrictive sentence appropriate in the circumstances and adequately reflected the totality of the offending. Crous' name will be placed on the Child Sex Offender Register and he will be subject to special conditions of home detention.

The appeal raises the issue of whether the District Court Judge erred in not imposing home detention instead of imprisonment. The Court found the Judge was wrong to give the seriousness of the offending too much weight in deciding the sentence. The Court noted that the nature of the offending must be considered along with the personal circumstances of the offender. The Court found home detention was the least restrictive sentence appropriate in the circumstances and adequately reflected the totality of the offending. The Court also found that Crous should be placed on the Child Sex Offender Register given the risk he poses to children. The appeal was allowed, the sentence of imprisonment was quashed, and Crous was sentenced to seven months’ home detention subject to special conditions.

Orders