Crous v Police

[2023] NZHC 3765

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 increase in suicidal thinking.

(d)The Department of Corrections’ pre-sentence report assessed Mr Crous as at low risk of re-offending but to pose medium risk of harm to others if he does reoffend, given the nature of the offending. It recommended home detention with special conditions of not having contact with anyone under 16, engaging in a special rehabilitative programme, and supervision of Mr Crous’ internet access by a probation officer. The report-writer expressed some concern that Mr Crous did not entirely comprehend the consequences of his actions.

The sentencing

[4]    On 13 September 2023, in the District Court at Wellington, after having given Mr Crous a sentencing indication, Judge A Nicholls sentenced Mr Crous to 12 months’ imprisonment.2 He described two of the videos in particular and characterised their content as confronting and monstrous.3 He noted that, in his sentencing indication, he had said he would struggle to convert a sentence of imprisonment to a community-based sentence.4 The Judge:

2      New Zealand Police v Crous [2023] NZDC 19988 [Judgment on Appeal].

3      At [2]–[3].

4 At [4].

(a)set a starting point of 22 months’ imprisonment, in accordance with the sentence indication, on the basis of the scale of the offending, the harmful content of the videos, and the fact the offences were for possession only, not distribution or encouraging others;5

(b)made a 25 per cent discount, or five and a half months, for an early guilty plea, in accordance with the sentence indication;6

(c)made a discount of five per cent from the starting point, or one month, because he accepted Mr Crous expressed genuine remorse and was committed to rehabilitation;7 and

(d)made a further discount of five per cent, or one month, for the mitigating factors identified in the psychiatric report, referring to the link between depression and use of alcohol and pornography to regulate mood as affecting culpability.8

[5]In considering the option of home detention, the Judge said:

[21]    I then need to consider whether this should be converted to home detention. The Sentencing Act 2002 provides that a sentence of imprisonment should only be imposed if there is no other sentence that would achieve the purposes and principles of sentencing in this case.

[22]  Section 7 of the Sentencing Act describes the purposes of sentencing, and it lists a number of purposes that need to be weighed in an individual case. In this case, it seems relevant to me that this is serious offending. It is offending against the most vulnerable of victims. It is difficult to detect and where offenders seem blind to the harm that they are causing the children involved.

[23]    In my view, substantial weight needs to be given to the purpose of deterrence and denunciation. These purposes are to be weighed more strongly in this case than your rehabilitation, given you are assessed as a lower risk of reoffending and any effective counselling for your mental health and how you came to engage in child pornography is likely to span a time period greater than your sentence in any event.

[24]    Section 8 describes the principles of sentencing and again there are a number, 10 in fact, and these need to be weighed in the context of an individual case. In this case, I have particular regard to the gravity of the offending, the

5      New Zealand Police v Crous DC Wellington CRI-2022-085-1947, 7 June 2023, at [17]

6 At [22].

7 Judgment on Appeal, above n 2, at [19].

8 At [20].

seriousness of the offence, and the reminder in s 8 to adopt the least restrictive outcome that is appropriate. I also have regard to the principle that I should consider the specific impact of any sentence on you, which I will come back to.

[25]   Having regard to the purposes and principles of sentencing in this case, and in particular the purposes and principles that I have just highlighted, my decision is that a sentence of imprisonment is necessary and appropriate. However, I have regard to the potential impact of imprisonment on you. I do not think the potential impact reaches the level of disproportionately severe that would prompt a  change  of  sentence,  but  I  do  note  the  advice  of  Dr Barry-Walsh that imprisonment will have a greater impact for you having regard to your long running challenges with depressive mood.

[26]   I will respond to that by shortening the sentence of imprisonment by a further two months and finalising a sentence of 12 months’ imprisonment, and I will be making the destruction orders requested by the police of both the material and the devices that they are on.

[6]    Mr Crous appeals his sentence. He was granted bail by the District Court pending the outcome of the appeal.

Submissions

[7]    Mr Nisbet, for Mr Crous, submits that the sentence of imprisonment was manifestly excessive and home detention should have been imposed instead. Not doing so was an error. The Judge erred in reasoning that deterrence and denunciation should be weighed more strongly that rehabilitation. The offence and the offenders’ personal circumstances both need to be considered. Mr Crous’ low risk of reoffending and need to engage in counselling points towards a rehabilitative sentence. Sentences for comparable, and  more  serious,  offences  have  resulted  in  home  detention.9  Mr Crous is a first-time offender who has expressed genuine remorse, presents a low risk of reoffending, and is committed to rehabilitation. Home detention is, itself, a serious punishment which will meet the purposes of deterrence and denunciation while allowing Mr Crous to rehabilitate. If home detention is an available sentence, it must be preferred according to ss 8 and 16 of the Sentencing Act. Mr Nisbet suggests home detention should be imposed for seven months given the District Court reached 14 months’ imprisonment before deducting two months for the impact of imprisonment.

9      Police v Dayarante [2018] NZDC 665; C v New Zealand Police [2019] NZHC 3431; and

Heppleston v R [2019] NZHC 3297.

[8]    Ms Squires, for the Police, submits there is no error, the sentence is not manifestly excessive, and it was available and appropriate. The Judge assessed the relevant issues comprehensively and considered home detention as he was required to do. Section 16 does not automatically favour home detention if it is available. Some of the other cases had a higher starting point and reached home detention but the evidence before those courts supported it. In the event the appeal is allowed, the Police submits Mr Crous should be registered under s 9 of the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 (Child Protection Act). That is appropriate because of the nature and seriousness of the offending, the period of time since the offending, the age of the offender, the fact rehabilitation has not yet been engaged, and Mr Crous’ medium risk of harm to others.

Was there an error in the sentence and should a different sentence be imposed?

[9]    Under s 250(2) of the Criminal Procedure Act 2011, I must allow the appeal if I am satisfied that there is an error in the sentence imposed and a different sentence should be imposed. I must be satisfied that the sentence is manifestly excessive.10 The focus is on whether the end sentence was within the range available.11

[10]   The purposes and principles of sentencing identified by the Judge are relevant to the issue of home detention and are entitled to, as he said, “substantial weight”. The Judge’s decision rested largely on the seriousness of the offending. But it is an error to consider the seriousness of the offending determines the decision of whether imprisonment should be commuted to home detention.12 There is no presumption for or against home detention for a particular type of offence. The nature of the offending must be considered along with the personal circumstances of the offender.13

[11]   In assessing all the considerations relevant to the choice between imprisonment and home detention, the requirement in s 8(g) of the Sentencing Act to impose the least restrictive sentence appropriate in the circumstances is important. Section 16 is also relevant. Section 16(1) requires a court to have regard to the desirability of keeping

10     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27], [33], and [35].

11     Ripia v R [2011] NZCA 101 at [15].

12     J (CA268/2016) v R [2016] NZCA 466 at [18]; and Ransom v R [2010] NZCA 390 at [41].

13     See Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [134]; Moses v R [2020] NZCA 296,

[2020] 3 NZLR 583 at [4]; and Sentencing Act 2002, ss 8 and 9.

offenders in the community as far as that is practicable and consonant with community safety. Section 16(2) requires that a court must not impose imprisonment unless satisfied that specified purposes of sentencing cannot be achieved by any other sentence. In Nassery v R, this Court observed that s 16 cannot be applied to ignore or avoid what otherwise would be an appropriate end sentence of imprisonment, given the explicit constraint of community safety.14

[12]   It is also important to have regard to consistency with sentences for similar offending. Mr Nisbet refers to the following cases which are relatively recent and relevant:

(a)In Police v Dayaratne, where the offender possessed over 3,000 files of objectionable material and was charged with making an objectionable publication, the District Court adopted a starting point of

30 months and reached an end sentence of eight months’ home detention.15

(b)In C v New Zealand Police, the offender pleaded guilty to a representative charge of distributing 61 child sexual exploitation images, one, a representative charge of possessing 1,550 bestiality and child sexual exploitation images and videos, and a representative charge of making two child exploitation images of his daughter.16 This was in the context of a relationship breakdown, heavy drinking, and boredom. He was ashamed, stopped the activity of his own volition, and assisted the Police to providing information about another offender. Thomas J upheld a starting point of four years’ imprisonment but, after discounts, reduced the sentence to 12 months’ home detention.

(c)In Heppleston v R, the offender possessed 28 video files and 135 still files of objectionable material and imported an obscene article, a

14     Nassery v R [2022] NZCA 213 at [25]. Leave to appeal was declined by the Supreme Court in

Nassery v R [2022] NZSC 97.

15     Police v Dayaratne [2018] NZDC 665.

16     C v New Zealand Police [2019] NZHC 3431.

pre-pubescent sex doll.17  Dunningham  J upheld a starting point  of  22 months’ imprisonment and an end sentence of 18 months with leave to apply for home detention if a suitable address could be found.

[13]   In those three cases, the offending was appreciably worse than here. But weighing all the relevant considerations led to sentences of home  detention.  Thomas J’s concluding statement in C v New Zealand Police indicates how to weigh relevant considerations there:

[58] Standing back then, what is in the best interests of society and the appellant and best meets the purposes and principles of sentencing? A sentence of imprisonment will see the appellant lose a good job, his home and future prospects. Given the length of sentence, rehabilitative treatment in prison is unlikely. The appellant’s employment prospects on release will inevitably be severely impacted. In contrast, a sentence in the community will enable him to remain in employment, provide for his family, build on the significant steps he has taken to date to address his rehabilitative needs and acknowledge the impact of his offending on victims. It will enable him to continue to be a contributing member of society while at the same time the safety of the community will be protected through a sentence of home detention and the placement of the appellant’s name on the Child Sex Offender Register.

[14]   Similar considerations apply here. Mr Crous has no previous criminal convictions, cooperated with the Police, and pleaded guilty. He has expressed a genuine remorse and a genuine desire to rehabilitate. He is clearly open to and wanting rehabilitation and has the support of his partner in that. Dr Barry-Walsh and Corrections assess him as a low risk of reoffending. A sentence of imprisonment will see him lose  his  flat,  putting  him at  further risk  of personal  destabilisation  and,  I expect, increasing the risk of re-offending. He will not receive rehabilitation on a short sentence of imprisonment. Furthermore, being in prison will likely set back his rehabilitation and exacerbate the mental health issues which contributed to the offending. His employment prospects will inevitably be impacted. In contrast, home detention will require him to engage in the rehabilitation treatment that he requires.

[15]   The undoubted and obvious seriousness of the offending does not override all that. Rather, it heightens the importance of ensuring Mr Crous does not offend again, given that he is otherwise assessed as at medium risk of harming others. Home

17     Heppleston v R [2019] NZHC 3297.

detention, which is not an easy sentence to serve, will do that better than imprisonment, while still representing denunciation and deterrence of future offending.18 That is consistent with the recommendation from Corrections. I also accept Corrections’ recommendations on special conditions of home detention.

[16]   The Crown, in turn, submits that if the appeal is upheld, Mr Crous should be placed on the Child Sex Offender Register. The Supreme Court in D v Police has stated the two-stage test for making a registration order under s 9 of the Child Protection Act.19 Here, given the ages of the victims, the moderate seriousness of the offending and, until he is rehabilitated, the doubt over whether he yet understands the consequences of his offending or his pathway to offending, I consider Mr Crous currently poses a real and genuine risk to the sexual safety of children. Given the lack of rehabilitation to date, Mr Crous’ age, and his medium risk of harm to others if he does reoffend, I consider the risk he poses justifies placement on the Child Sex Offender Register. That will mean, in particular, that details of his telecommunications service, internet service provider, usernames, websites, and email addresses will need to be registered. In itself, placement on the Register is punitive and a significant form of punishment.20 This is a relevant consideration to the issue of whether to commute imprisonment to home detention.

[17]   I consider that home detention for seven months, with special conditions, in combination with placement on the Child Sex Offender Register, is the least restrictive sentence appropriate in the circumstances and adequately reflects the totality of the offending. In totality, I consider this punishment is proportionate to the risk Mr Crous poses and consistent with the best available means of reducing it.

Result

[18]   The appeal is allowed. The sentence of 12 months’ imprisonment is quashed. Mr Crous’ name will be placed on the Child Sex Offender Register. I sentence him to seven months’ home detention at the proposed address, subject to the special conditions that he is:

18     See Fairbrother v R [2013] NZCA 340 at [29].

19     D v Police [2021] NZSC 2, [2022] 1 NZLR 213 at [104]–[108].

20     Bell v R [2017] NZCA 90 at [26]; Taitapanui v R [2018] NZCA 300 at [33].

(a)not to associate, or otherwise have contact with, any person under 16 years of age except in the presence and under the supervision of an “Approved Informed Adult”;

(b)to attend an assessment for harmful sexual behaviour programme as directed by a Probation Officer;

(c)to attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer; and

(d)to make available to a Probation Office, or their agent, any electronic device capable of accessing the internet that is used by him, or is in his possession or control, for the purpose of monitoring his use of the device.

Palmer J