R v DAVID ROSS CROUCH [2024] SASC 57

Applicant: R Counsel: MS T NELSON - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Respondent: DAVID ROSS CROUCH Counsel: MR M LOVE - Solicitor: LEGAL SERVICES COMMISSION (SA) Hearing Date/s: 17/08/2023, 26/03/2024 File No/s: SCCRM-22-328 B SUPREME COURT OF SOUTH AUSTRALIA (Criminal: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. 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. -- 1 of 29 -- -- 2 of 29 -- R v CROUCH [2024] SASC 57 Criminal: Application 1 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”). 2 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. 3 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. 4 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 5 Mr Crouch’s history of relevant sexual offending and his engagement in treatment programs is relevant. I set out a summary below. 6 Between 1 January 1989 and 27 April 1991, Mr Crouch committed the offence of unlawful sexual intercourse with a person under 12 years. The victim was Mr Crouch ’s stepson, aged about six years at the time. The offending involved performing oral sex on the victim. 7 Between 1 September 1996 and 1 September 1997, Mr Crouch committed the offence of unlawful sexual intercourse with a person under 12 years. The victim was Mr Crouch’s stepson, who was then aged 11 or 12 years old. The offending involved performing oral sex on the victim and the victim performing oral sex on Mr Crouch. This offending occurred after Mr Crouch’s stepson returned to reside with Mr Crouch and his then wife after an interval living elsewhere. 8 On 28 March 2002, Mr Crouch was sentenced for the two counts of unlawful sexual intercourse and received a term of imprisonment of three years and nine months to commence from 28 March 2002. On 27 September 2004, Mr Crouch was released on parole. -- 3 of 29 -- [2024] SASC 57 Stein J 2 9 On 18 November 2004, Mr Crouch commenced attending the Sex Offender Treatment and Assessment Program and attended 43 out of 55 weekly treatment sessions. 10 Mr Crouch’s period of parole in respect of the imprisonment for the counts of unlawful sexual intercourse expired on 27 December 2005. 11 Between March 2006 and 14 May 2006, Mr Crouch committed the offence of unlawful sexual intercourse with a person over the age of 12 and under the age of 17. The victim was aged 14 years. Mr Crouch had known the child since she was 18 months old. On 27 August 2006, Mr Crouch committed the offence of unlawful sexual intercourse with a person over the age of 14 and under the age of 17. The victim was the same victim of the March to May 2006 offending. The offending included penile/vaginal sexual intercourse. Mr Crouch also filmed the victim in the bath. 12 Between 20 November 2006 and 21 December 2006, Mr Crouch breached his conditions of bail by contacting the victim of his offending contrary to the terms of his bail agreement. 13 On 16 August 2007, Mr Crouch was sentenced in relation to the 2006 offending. Mr Crouch received a term of imprisonment of five years and four months. 14 In 2009 while in custody, Mr Crouch took part in the Sexual Behaviour Clinic program (“SBC”). Mr Crouch was assessed both before and after treatment through the Sexual Behaviour Clinic. The post-treatment assessment estimated Mr Crouch’s overall risk of sexual re-offending as falling within the high range. 15 Mr Crouch’s parole period expired, and he was released on 21 April 2012. 16 Between 23 July 2014 and 13 March 2015, Mr Crouch committed the offence of using a listening device to monitor private conversations. Mr Crouch was witnessed filming children in an adjacent yard without permission. 17 On 13 March 2015, Mr Crouch committed the offence of possessing child pornography contrary to s 63A of the Criminal Law Consolidation Act 1935 (SA). 18 On 19 August 2016, Mr Crouch was sentenced by the Magistrates Court for the offending which occurred between July 2014 and 13 March 2015. Mr Crouch was sentenced to a period of imprisonment of four years and 10 months to commence from 13 May 2015. 19 In 2019, Mr Crouch engaged in, and completed, the Sexual Behaviour Clinic program. 20 In a report dated 16 November 2019, Dr Raeside assessed Mr Crouch as being at ongoing significant risk of further sexual re-offending. -- 4 of 29 -- [2024] SASC 57 Stein J 3 21 On 26 February 2020, the Supreme Court made orders imposing on Mr Crouch an extended supervision order (“ESO”) for three years. 22 On 12 May 2020, Mr Crouch was released from custody. 23 On 28 October 2021, Mr Crouch was interviewed by the Parole Board of South Australia in relation to two breaches of the no drugs condition of the ESO and received a warning from the Parole Board. 24 On 16 March 2022, Mr Crouch committed the offence of aggravated possessing child exploitation material and possessing child exploitation contrary to s 63A(1) of the Criminal Law Consolidation Act 1935 (SA). Mr Crouch was alleged to have breached his ANCOR obligations by following a 15 year old female on Instagram. The discovery of the Instagram contact resulted in the police searching Mr Crouch’s residence and finding the child exploitation material. The charge referable to the Instagram contact was later withdrawn. 25 Mr Crouch pleaded guilty to the charges of aggravated possession and possession of child exploitation material. 26 On the prosecution’s application, Mr Crouch was remanded by the District Court to be dealt with by the Supreme Court pursuant to s 57 of the Sentencing Act. 27 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 28 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. 29 The files were subsequently categorised as falling between aggravated category 1 to aggravated category 5 and basic categories 1 to 6. 30 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. -- 5 of 29 -- [2024] SASC 57 Stein J 4 31 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. 32 Any depiction which shows a child who appears to be under 14 years of age is an aggravated category. 33 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. 34 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. 35 The investigator also located a digital eBook entitled “How to practice child love”, which was described as a 170 page publication depicting detailed step-by- step instructions to paedophiles interested in locating and grooming children for sexual activity. The eBook contained numerous written examples and descriptions of sexual activity between adults and children. The investigator described the book as “a horrendous piece of material” that encourages and enables paedophiles to transition from viewing child exploitation material to engaging in contact sexual offending against real child victims. 36 The digital book was last accessed on 6 October 2021 and the court transcripts were last accessed on 13 January 2022, about three months prior to Mr Crouch’s arrest. 37 Mr Crouch also had 34 images of the victim of Mr Crouch’s offending for which he was sentenced in 2007. Six images depicted the genitals of the victim and Mr Crouch positioned next to each other. Metadata indicated the images were last accessed in October 2021, about six months prior to Mr Crouch’s arrest. -- 6 of 29 -- [2024] SASC 57 Stein J 5 Applicable legal principles 38 Section 57 of the Act relevantly provides as follows: 57—Offenders incapable of controlling, or unwilling to control, sexual instincts (1) In this section— … person to whom this section applies means— (a) a person convicted by the Supreme Court of a relevant offence; or (b) a person remanded by the District Court or the Magistrates Court under subsection (2) to be dealt with by the Supreme Court under this section; or (c) a person who is the subject of an application by the Attorney General under subsection (3); relevant offence means— (a) an offence under section 48, 48A, 49, 50, 56, 58, 59, 63, 63A, 63B, 69 or 72 of the Criminal Law Consolidation Act 1935; or (b) an offence under section 23 of the Summary Offences Act 1953; or (c) an offence under a corresponding previous enactment substantially similar to an offence referred to in either of the preceding paragraphs; or (d) any other offence where the evidence indicates that the defendant may be incapable of controlling, or unwilling to control, the defendant's sexual instincts; or (e) an offence of failing to comply with a reporting obligation relating to reportable contact with a child without a reasonable excuse where the defendant is a registrable offender within the meaning of the Child Sex Offenders Registration Act 2006; unwilling—a person to whom this section applies will be regarded as unwilling to control sexual instincts if there is a significant risk that the person would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of the person's sexual instincts. (2) If, in proceedings before the District Court or Magistrates Court, a person is convicted of a relevant offence and— (a) the court is of the opinion that the defendant should be dealt with under this section; or (b) the prosecutor applies to have the defendant dealt with under this section, the court will, instead of sentencing the defendant itself, remand the convicted person, in custody or on bail, to appear before the Supreme Court to be dealt with under this section. -- 7 of 29 -- [2024] SASC 57 Stein J 6 (3) … (4) … (5) … (6) The Supreme Court must, before determining whether to make an order that a person to whom this section applies be detained in custody until further order, direct that at least 2 legally qualified medical practitioners (to be nominated by a prescribed authority for the purpose) inquire into the mental condition of a person to whom this section applies and report to the Court on whether the person is incapable of controlling, or unwilling to control, the person's sexual instincts. (7) The Supreme Court may order that a person to whom this section applies be detained in custody until further order if satisfied that the order is appropriate. (8) The paramount consideration of the Supreme Court in determining whether to make an order that a person to whom this section applies be detained in custody until further order must be to protect the safety of the community (whether as individuals or in general). (9) The Supreme Court must also take the following matters into consideration in determining whether to make an order that a person to whom this section applies be detained in custody until further order: (a) the reports of the medical practitioners (as directed and nominated under subsection (6)) provided to the Court; (b) any relevant evidence or representations that the person may desire to put to the Court; (c) any report required by the Court under section 61; (d) any other matter that the Court thinks relevant. (10) A copy of a report provided to the Supreme Court under subsection (9) must be given to each party to the proceedings or to counsel for those parties. (11) … (12) If a person to whom this section applies has not been sentenced for a relevant offence, the Supreme Court will deal with the question of sentence at the same time as it deals with the question whether an order is to be made under this section and, if the Court decides to make such an order, the order may be made in addition to, or instead of, a sentence of imprisonment. (13) If the detention is in addition to a sentence of imprisonment, the detention will commence on the expiration of the term of imprisonment, or of all terms of imprisonment, that the person is liable to serve. … 39 Mr Crouch accepts that the definition of “relevant offence” includes the offences of aggravated and basic possession of child exploitation material and accordingly applies to him. -- 8 of 29 -- [2024] SASC 57 Stein J 7 40 The definition of a person being “unwilling” to control his or her sexual instincts differs from the ordinary meaning of the word “unwilling”. The question of whether a person is unwilling to, or incapable of, controlling their sexual instincts is a threshold question which must be answered “yes” or “no”.1 Before making an order for indefinite detention, the Court is required to be satisfied a person is either incapable of controlling or unwilling to control their sexual instincts.2 If the threshold question is answered “yes”, there is a foundation for making an order for indefinite detention. 41 However, a residual discretion remains. Even if the person is incapable of controlling, or unwilling to control, their sexual instincts, there may nevertheless be circumstances in which it is inappropriate for an indefinite detention order to be made.3 42 The making of an order which is based on what it is apprehended a person might do, as opposed to what a person has done, is an exceptional step with grave consequences for personal liberty. A cogent evidentiary foundation must therefore be established.4 43 In R v Hoare,5 Hinton J referred to observations of Bleby J in R v England6 (in relation to a provision which was the precursor to s 57(7)) as follows: ... satisfaction as to the inability of a person to control their sexual instincts is a matter of assessing the opinions to that effect, their strengths and their weaknesses, to a point where the court can be satisfied that the incapacity is present. In doing so, the court will need to take account of the seriousness of the declaration it is asked to make and the gravity of the consequences of giving the direction. To borrow the words of Dixon J in Briginshaw v Briginshaw, the necessary degree of satisfaction cannot be produced “by inexact proofs, indefinite testimony or indirect inferences”. It will require cogent and acceptable evidence in order to justify the making of the declaration and the giving of the direction. But even then, there is a residual discretion conferred by the use of the word “may” in the subsection. In that respect it may also be appropriate to consider, as in the case of R v Fahey and R v Riley whether, if a sentence is also imposed, the defendant is likely, at the end of the custodial period, to resume similar sexual activities. This will, in turn, require consideration, among other things, of the defendant’s access to and the likely effect of various regimes of treatment, and whether they can be effected in the prison setting or in some other institution contemplated by the section. (citations omitted) 1 Hoare v The Queen [2017] SASC 7 at [63] (Hinton J) (His Honour considering similar provisions under previous sentencing legislation). 2 R v Schuster [2016] SASCFC 86; (2016) 125 SASR 388 at [97]-[98] (Kourakis CJ, Blue and Doyle JJ) (Their Honours considering similar provisions under previous sentencing legislation). 3 Attorney-General (SA) v Driver [2021] SASC 66 at [22] (Livesey J) citing, R v Hoare [2017] SASC 7 at [63] (Hinton J). 4 Attorney-General (SA) v Driver [2021] SASC 66 at [24] (Livesey J) quoting, R v Hoare [2017] SASC 7 at [65] (Hinton J) 5 [2017] SASC 7 at [65] (Hinton J). 6 [2004] SASC 20 at [56]; (2004) 87 SASR 411 at 423-4 (Bleby J). -- 9 of 29 -- [2024] SASC 57 Stein J 8 44 These observations are apposite in the exercise of the discretion required by s 57(7) of the Act.7 45 The paramount consideration is the protection of the safety of the community, whether generally or as individuals. The exercise to be undertaken by the Court remains a balancing exercise. The Act does not prescribe a minimum acceptable risk because such risk cannot be measured with precision. In Hoare, Hinton J adopted observations made in R v Schuster8 to the effect that the safety of the community is not a condition precedent to the favourable exercise of the discretion. The Court is not required to be satisfied there is no or no material risk to the safety of the community before the discretion is enlivened. The question is whether the community’s protection is adequately ensured.9 An order for supervised release should, in principle, be preferred to a detention order if supervision is apt to ensure adequate protection having regard to the risk posed to the community. This is because the intrusions of the Act upon the liberty of the subject are exceptional and such liberty should be constrained to no greater extent than is warranted by the legislation.10 46 Justice Hinton observed that this approach applies in the case of an application for indeterminate detention. Consequently, if the Court is satisfied the offender is incapable or unwilling to control his or her sexual instincts, the question is whether an order for indeterminate detention is appropriate to ensure adequate protection of the community having regard to the risk to the community posed by the offender. Psychiatric and other reports 47 I received a report of Dr Haeney dated 2 November 2022 and reports of Dr Raeside dated 16 November 2019, 15 September 2022, and 6 December 2022. I heard oral evidence from Dr Raeside. Dr Haeney was not required for cross- examination. Reports of Dr Raeside Report in support of previous extended supervision order 48 Dr Raeside is a specialist psychiatrist practising in consultant forensic psychiatry with significant experience in his area of expertise. 49 Dr Raeside previously assessed Mr Crouch for the purposes of an application for an ESO. Dr Raeside considered Mr Crouch to have significant underlying psychosexual problems which did not fall neatly into a particular diagnostic label. Dr Raeside diagnosed Mr Crouch as suffering from mixed personality disorder 7 Attorney-General (SA) v Driver [2021] SASC 66 at [25] (Livesey J). 8 [2016] SASCFC 86; (2016) 125 SASR 388. 9 R v Schuster [2016] SASCFC 86; (2016) 125 SASR 388 at [79] (Kourakis CJ, Blue and Doyle JJ). 10 R v Schuster [2016] SASCFC 86; (2016) 125 SASR 388 at [83] (Kourakis CJ, Blue and Doyle JJ) quoting, Attorney-General (Qld) v Francis [2006] QCA 324; [2007] 1 Qd R 396 at [39] (Keane and Holmes JJA, Dutney J). -- 10 of 29 -- [2024] SASC 57 Stein J 9 with antisocial and borderline traits, chronic post traumatic stress disorder and unspecified paraphilia. 50 At the time of preparing his report, Dr Raeside supported the application for an ESO as he considered Mr Crouch was at an ongoing significant risk of further sexual offending in the community based on his history and because he had obtained limited benefit from various sexual offender programs. 51 Dr Raeside noted the risk would increase if Mr Crouch were to abuse substances that would further affect his emotional control and regulation. Dr Raeside considered the fact Mr Crouch re-offended shortly after completing an extended sentence increased concern. Report in support of indefinite detention order 52 Dr Raeside observed that Mr Crouch in interview did not appear depressed or elevated in mood nor unduly anxious. He did not display any psychotic features such as delusional ideas, psychotic thought disorder, or perceptual disturbances. 53 In addition to chronic neck pain and back pain and well controlled hypertension, Mr Crouch had been diagnosed with low grade prostate cancer. Dr Raeside understood that there was no suggestion of spread and Mr Crouch was not actively receiving treatment but was on a watch program. 54 Mr Crouch reported some issues with his mental health. He had anxiety and concern about his prostate cancer diagnosis and his future. 55 Dr Raeside summarised Mr Crouch as a 53 year old single man who experienced difficulties in his childhood with bullying and teasing, experiencing some identity disturbance, aggravated by being sexually abused in adolescence. As an adult he was sexually assaulted at gunpoint in a home invasion and was injured in a separate home invasion. He developed several post-traumatic stress symptoms and probably a post-traumatic stress disorder. He has been on antidepressants for many years. 56 Mr Crouch’s explanation to Dr Raeside for the child exploitation material was a spiral of his post-traumatic stress disorder, difficulties sleeping and feeling depressed and anxious. Mr Crouch said he discovered old computer discs and “did a recovery” on some files finding, among other things, child exploitation material. While claiming he did not know what was on the devices, Dr Raeside observed that Mr Crouch’s other comments contradicted that position. Mr Crouch acknowledged to Dr Raeside that he went through the materials, reviewed them, kept some child exploitation material and put them on a separate file. Mr Crouch explained he was feeling down and viewing them made him feel better. 57 Dr Raeside considered Mr Crouch’s explanation and comments suggested there was motivation for him to recover the files and the conduct was not simply accidental. -- 11 of 29 -- [2024] SASC 57 Stein J 10 58 Dr Raeside asked Mr Crouch about the many thousands of child exploitation material images. Mr Crouch responded that when he did a recovery on his disc, files would have been duplicated. In the opinion of Dr Raeside, Mr Crouch missed the point of the question, which was why he would have so many images. 59 Mr Crouch did not explain why he had the digital eBook and copies of trial transcripts. Mr Crouch claimed he had never read the whole book, that the book did not promote sex with children, and it was not intended to be a manual. Mr Crouch described curiosity as to how such a book could be written and published, seemingly distancing himself from the actual material. 60 Mr Crouch acknowledged finding images of his victim from 2007 and looking at them but denied doing so for sexual stimulation. Mr Crouch claimed it helped him because it reminded him that he had abused her trust. 61 Dr Raeside considered Mr Crouch demonstrated minimisation and other cognitive distortions around his offending, that he appeared detached in terms of its significance and demonstrated no understanding of the impact on the victims. 62 When asked whether he thought he was a risk for further sexual offending, Mr Crouch said he did not want to hurt anyone else. When asked about past offending, he said he did not understand the impact he was having. 63 Dr Raeside observed that Mr Crouch had not had any mental health or further sexual offender therapy since 2019. 64 He referred to his discussions with Mr Crouch in 2019 including strategies Mr Crouch planned to use to prevent further offending. Dr Raeside said Mr Crouch had not used his strategies more recently and previous sentencing remarks suggested he had not learnt from his previous offending despite imprisonment. 65 Dr Raeside reported that in previous participation in the Sexual Behaviour Clinic program, it was thought Mr Crouch developed some greater insight but he failed to use the necessary skills. Mr Crouch’s sexual offending was thought in part to be due to a use of sexual arousal as a coping strategy for dealing with traumatic events and persistent depression. Dr Raeside noted that this continued to be problematic. 66 Dr Raeside thought that Mr Crouch’s offending involving filming neighbouring children and having possession of child pornography suggested ongoing sexual interest concerning children as well as adults. Mr Crouch’s only long term significant heterosexual relationship to an ex-wife involved diverse sexual behaviour. 67 Dr Raeside formed the view that Mr Crouch intentionally sought child exploitation material that he had found maladaptively to help with feelings of anxiety and depression. Dr Raeside considered Mr Crouch used sex as a coping -- 12 of 29 -- [2024] SASC 57 Stein J 11 mechanism but with deviant and distorted sexual interest and arousal. He observed that Mr Crouch continued to distort, minimise and detach in relation to the issues. 68 Dr Raeside considered that Mr Crouch has significant underlying psychosexual problems that do not fall neatly in a diagnostic label such as paedophilia because of Mr Crouch’s obvious sexual interest in adults as well. However, his sexual offending involved underage children and was not simply restricted to images. Dr Raeside referred to possession of the trial transcripts of victims of abuse as presumably being for deviant sexual arousal. 69 Dr Raeside assessed Mr Crouch as having underlying chronic post-traumatic stress disorder best conceptualised as mixed personality disorder with borderline and antisocial traits and with non-specific paraphilia. 70 Dr Raeside considered Mr Crouch had an ongoing significant risk of further sexual offending. He reached this view taking into account his history and the limited benefit obtained from various sexual offender programs. That risk would increase if Mr Crouch abused substances. He referred to Mr Crouch’s intravenous use of methamphetamine out of curiosity and breaching his ESO as suggesting a recklessness and disregard for restrictions to assist him to control his behaviour. 71 Dr Raeside’s opinion is that Mr Crouch is unwilling to control his sexual instincts in the sense that if, given the opportunity, he would likely act on his sexual urges and commit further offences. He further opined that Mr Crouch is at significant risk of not only engaging in child exploitation material but committing contact sexual offending. 72 Dr Raeside supported the application for indefinite detention. He observed that while there may be little benefit to a further referral, further Sexual Behaviour Clinic assessment and management was probably appropriate. Further report 73 On 6 December 2022, Dr Raeside provided a further brief report concerning anti-libidinal medication. 74 Dr Raeside noted that such medication is used to reduce testosterone level. However, sexual drive and urges are not simply a biological response to testosterone but involve psychological and social factors as well. It would not change the person’s sexual preference, deviant or otherwise, but could potentially reduce the likelihood of acting on such urges. 75 While such medication may be used in the treatment of prostate cancer, Mr Crouch was not receiving such medication. Evidence of Dr Raeside 76 Dr Raeside considered the possession of child exploitation material in 2022 represented a continuation of a similar pattern of Mr Crouch’s previous offending. -- 13 of 29 -- [2024] SASC 57 Stein J 12 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. 77 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. 78 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. 79 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. 80 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. 81 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. 82 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 -- 14 of 29 -- [2024] SASC 57 Stein J 13 accessing the eBook suggesting how to contact offend dramatically increased the risk of Mr Crouch engaging in further contact offending. 83 Dr Raeside accordingly expressed the opinion that Mr Crouch is at high risk on all relevant factors for both non-contact and contact offending. 84 Nothing will ameliorate the effect of Mr Crouch’s static risk factors including gender, age, past criminal history and victimisation. Dr Raeside agreed that if Mr Crouch’s dynamic factors, including substance abuse and mental health, were capable of change that would alter the risk of re-offending. One such key factor was Mr Crouch feeling depressed and turning to maladaptive behaviour to make himself feel better. Consequently, not being depressed and abstaining from illicit drugs and alcohol would assist. Dr Raeside nevertheless thought the weight of Mr Crouch’s static factors, particularly his past history, suggested Mr Crouch would remain at high risk although less so than if he was depressed or abusing substances. 85 Dr Raeside said custodial sentences do not appear to have acted as a deterrent apart from the fact that Mr Crouch had not had further contact offending since 2007. That could have been a result of the deterrent factor of custody. However, Dr Raeside also said that Mr Crouch’s breach of supervision conditions suggested Mr Crouch had not done everything he could have done to avoid further re- offending. 86 Dr Raeside suspected that Mr Crouch had shifted to child exploitation material for his primary sexual gratification since coming out of custody after the 2007 offences. It was important in his view that in breaching the ESO, Mr Crouch did not simply take drugs or drink but attempted to access the internet and thus took steps that would increase his risk of further offending. 87 Dr Raeside was reluctant to say Mr Crouch had no insight, but observed that Mr Crouch has a number of cognitive distortions including minimising prior behaviour and minimising the risk in which he placed himself and impaired insight in not recognising the nature of activities and the risks they pose. As an example he referred to Mr Crouch’s response when asked about the material with which Mr Crouch was found. Mr Crouch initially said he had that material for years, then denied it promoted sex with children, and then said he had curiosity in it. Dr Raeside regarded this as a form of cognitive distortion and minimisation and thought any suggestion that Mr Crouch was interested in reading the material as an article rather than for sexual gratification was implausible. He said that while Mr Crouch did not deny his prior offending, he tended to minimise it as not being significant. 88 Dr Raeside said that any use of methamphetamine would increase risk through the effect of increasing sexual arousal and as alcohol is disinhibitory, a combination of methamphetamine and alcohol would be a particularly problematic mix. -- 15 of 29 -- [2024] SASC 57 Stein J 14 89 Dr Raeside referred to past programs in which Mr Crouch had engaged including at Owenia House, while in the community and two Sexual Behaviour Clinic programs in custody. He considered that Mr Crouch was not suited to the SBC-me program which is a modified program for those with poor literacy, numeracy or actual intellectual disability. Mr Crouch’s difficulties related more to his emotional capacity. However, given that Mr Crouch had completed the programs before and failed to benefit from them, if he were to take part in another SBC program in custody, Dr Raeside said a modified version may be worth considering. 90 Dr Raeside thought the treatment course was not effective given Mr Crouch had continued to offend after completing the SBC. He did not necessarily agree that with each subsequent course the efficacy decreases because Mr Crouch’s maturity or insight or motivation might change. However, Dr Raeside said that if the course does not address the underlying problem, repeating it will not matter. 91 Dr Raeside opined that Mr Crouch is unwilling to control his sexual instincts and there is a high risk that should Mr Crouch have the opportunity to act, he would choose to act on his sexual instincts. He did not however think Mr Crouch’s sexual instincts were primarily focussed on children. Mr Crouch had shown interest in both males and females as well as pre-pubertal and post-pubertal children which increased the level of risk. 92 Dr Raeside was reluctant to offer any opinion in relation to whether Mr Crouch was becoming closer to being incapable of controlling his sexual instincts including because he was not aware of any inappropriate sexual behaviour in custody. 93 Dr Raeside said Mr Crouch had not trialled anti-libidinal medication to decrease his testosterone and thus decrease his sexual urges and his likelihood of acting on them. Anti-libidinal medication would also potentially treat his prostate cancer as the treatment reduces testosterone. He said a reduction to sufficiently low testosterone level may be achieved, but that may or may not have any real bearing on Mr Crouch’s sexual urges and risk of acting. This is because sexual interest also depends on cognitive and social factors. 94 Dr Raeside considered it possible that anti-libidinal medication may be effective in combination with a further attempt to address Mr Crouch’s cognitive distortions. However, he observed that it would not be possible to know whether treatment was effective while in custody and the only real test would be once Mr Crouch was released into the community. 95 In cross-examination, Dr Raeside agreed that some people view child exploitation material for living out fantasies without ever acting on it physically. However, he maintained that as Mr Crouch continued to be sexually aroused by such material, he considered it likely that if Mr Crouch had the opportunity, he would act on it. -- 16 of 29 -- [2024] SASC 57 Stein J 15 96 Dr Raeside thought it likely that Mr Crouch’s sexual drive will decrease with time particularly with the combination of age, prostate cancer and anti-libidinal medication, if administered. If Mr Crouch required surgery for his prostate, that would probably further decrease sexual drive. He agreed there is a reduction in sex drive with age, that the last contact offending occurred when Mr Crouch was in his 30s and he is now in his 50s. Dr Raeside clarified that Mr Crouch did not describe an aversive behaviour to child exploitation material. He said diminishing sex drive might explain no further contact offending but there were other factors including the circumstances in which a person finds themselves which may be relevant. He said it may also be that Mr Crouch did not want to offend against children, however, the way Mr Crouch responded to his questions in interview suggested Mr Crouch did not have that level of insight. Dr Raeside opined that there is a high risk that, should he have the opportunity, Mr Crouch would choose to act on his sexual instincts. 97 Dr Raeside confirmed that removal of the prostate can result in impotence and other side effects and that if Mr Crouch were to receive various treatments for prostate cancer it could quite likely decrease his ability to achieve or maintain an erection and therefore decrease the opportunity to act on any sexual arousal. He said that if Mr Crouch no longer achieved physical sexual gratification from viewing child exploitation material it would reduce his likelihood of continuing to watch the material at least to the same frequency which would make him less likely to be sexually aroused in the community. 98 Dr Raeside said the effect of undergoing treatment of anti-libidinal drugs would be expected to reduce sex drive as testosterone levels reduce. However individual variable factors will impact on the completeness of the treatment. 99 Dr Raeside did not consider Mr Crouch’s depression to be a cause of why he looked at the child exploitation material but he said that Mr Crouch may use it as a form of escape and thus feel less depressed. However, he said that with forms of addictive behaviour linked to depression, momentary escape from the unpleasant feelings can occur but often the sufferer feels worse afterwards. Dr Raeside agreed that a reduction in depression and undertaking hobbies and other prosocial activities would generally reduce his risk, but he remained of the view that Mr Crouch would still likely be in the high risk range. Further, Mr Crouch’s criminal history would limit his ability to take part in activities in the community. 100 Dr Raeside was unable to answer to what extent a finite sentence with an end date was likely to encourage rehabilitation. He agreed that an indefinite sentence can be crushing and result in lack of attempts to rehabilitate. However, he considered the notion that Mr Crouch may apply for release in the future might be a motivation to engage in rehabilitation programs. -- 17 of 29 -- [2024] SASC 57 Stein J 16 Report of Dr Haeney 101 On 2 November 2022, Dr Haeney provided a report in relation to Mr Crouch. Dr Haeney is a consultant forensic psychiatrist with significant relevant experience. 102 Dr Haeney summarised Mr Crouch’s history of offending and the various reports obtained including the report of Dr Raeside in 2019 for the ESO application. 103 Mr Crouch told Dr Haeney that he commenced using child exploitation material again after an event towards the end of 2020 where he was awoken by a bang from his neighbour’s house and he heard retreating footsteps and he felt this triggered his symptoms of post-traumatic stress disorder from his previous home invasion. Mr Crouch said it made him feel better because he had used it before and it was an escape from reality. It took him back to the days when he played “doctors and nurses” with kids in the street. Restarting the use of child exploitation material left him feeling conflicted because he knew it was wrong and he thought he would end up back in gaol but it made him feel better. Mr Crouch told Dr Haeney that he believed he had little to lose given how low he was feeling and he associated his offending with depression. 104 Mr Crouch told Dr Haeney that after an admission to hospital in April 2021 he began using the internet and developed an interest in cryptocurrency. He enjoyed the process and his use of cryptocurrency started to replace his child exploitation material habit. He then began joining social media sites. Mr Crouch knew of his reporting obligations. When asked if he was allowed to use social media, Mr Crouch’s response was that it was little bit grey. When police inspected his devices in early March 2021, child exploitation material was not found because it was saved on a USB he did not disclose. Mr Crouch said he was using child exploitation material three or four times a week, looking at it and sometimes masturbating. 105 When asked about the extent of the child exploitation material found, Mr Crouch said a lot of it dated back to 2012 to 2014. He said he performed a recovery on SD cards and acknowledged that maybe he was hoping there was child exploitation material but said there were personal photos he wished to recover. 106 Mr Crouch acknowledged he was most sexually aroused by activity displaying sexual interactions between children aged eight or above. His preferred sexual interest was mainly females but also some males generally 10 years old or above, but he maintained he was not generally interested in sadomasochism, bondage, or domination. While acknowledging some material discovered involved sadistic behaviour, he said it was not right, but he had kept the material because it would make him stop and think and give him a reality check. 107 Mr Crouch maintained that he had not made attempts to contact children. He said he downloaded the eBook years ago and was not much of a reader and so -- 18 of 29 -- [2024] SASC 57 Stein J 17 had never got around to reading the full material and he did not intend to use it as a how-to guide. 108 Mr Crouch maintained the material from the Court was obtained to undertake research. 109 Mr Crouch told Dr Haeney he had downloaded some child exploitation material but found some through salvaging hard drives at his waste recycling work. If he found child exploitation material he would use it. He acknowledged recording his neighbours’ children and that he found the elder girl to be attractive. He denied any face-to-face contact but said he had masturbated to the recordings. 110 Mr Crouch acknowledged the sexual abuse of his stepson was wrong, but he told himself his stepson was not suffering ill effects, it was not doing a great deal of harm, and if he was caught Mr Crouch would kill himself. He described the abuse of the 14 year old girl coming to light when someone stayed with him. Mr Crouch described that person as supposedly a friend. Dr Haeney thought this suggested Mr Crouch felt aggrieved at their intervention. 111 Mr Crouch said the Sexual Behaviour Clinic and Sexual Offender Treatment and Assessment Program taught him that victims and their families were likely to suffer. He said the children portrayed in child exploitation material were abused to develop the material and that obtaining the material perpetuates people doing evil. Nevertheless, Mr Crouch continued to use child exploitation material saying he sometimes wished he could go back to being a kid exploring his sexuality with other kids. 112 Dr Haeney noted that Mr Crouch had previously been diagnosed with either an unspecified paraphilia or paedophilia and had a long and diverse history of sexual offending. Shortly after he completed his sentence for the offending against his stepson, he offended against his particularly vulnerable 14 year old female neighbour by grooming and sexually abusing her. 113 Despite his second period of imprisonment and completing the Sexual Behaviour Clinic program, Mr Crouch offended again through possession of child exploitation material and covertly filming his neighbours’ children. Despite being released on an ESO, he was arrested again in March 2022. 114 Dr Haeney performed a risk assessment utilising the framework of the Risk for Sexual Violence Protocol. The Protocol identifies 22 factors associated with risk of sexual offending clustered over five domains, being sexual violence history, psychological adjustment, mental disorder, social adjustment and manageability. Each item is assessed for presence and relevance and relevant factors are used to develop a formulation of an individual’s sexual violence offending, considering potential scenarios for further offending and management plans. The Protocol does not generate an estimate of the likelihood of an individual perpetrating further -- 19 of 29 -- [2024] SASC 57 Stein J 18 sexual violence offending but judgments can be made on the analysis of risk factors and the feasibility of management plans. 115 Dr Haeney observed that Mr Crouch had engaged in contact and non-contact offending within the Protocol. He said it could not be said that Mr Crouch’s offending had escalated given the most serious offences were his earliest offending. It was unclear whether treatment had prevented further contact offending or further contact offending had been curtailed by other factors such as supervision. Psychological coercion or grooming was evident. 116 Dr Haeney considered Mr Crouch did not display extreme minimisation or denial and he broadly accepted his previous offences and current charges. However, there was some noticeable rationalisation and minimisation. Mr Crouch continued to rationalise his most recent offending portraying it as a response to reactivated PTSD, isolation and depression. Mr Crouch portrayed his decision to download and keep sadistic child exploitation material as a reality check and insisted much of the material found was recovered from deleted files in searching for personal photographs. Dr Haeney considered that the instructional eBook suggested Mr Crouch condoned sexual abuse of children. Dr Haeney said while Mr Crouch could refer to many core themes of the treatment he had completed, despite the work he has undertaken he continued to offend often within a short period of release. Dr Haeney thought Mr Crouch’s justifications suggested significant difficulty with ongoing self-awareness. 117 Dr Haeney considered Mr Crouch showed clear evidence of sexual deviance which has a strong link with sexual offending. Given the broad nature of child exploitation material images found, Dr Haeney considered there is a possibility of interest in sadism and bondage. Despite his antisociality, Dr Haeney considered Mr Crouch does not appear to meet the criteria for psychopathic personality disorder. Dr Haeney considered Mr Crouch does not have a major mental illness directly relevant to his offending, but he had a history of substance abuse. His offending did not appear to be directly mediated by substance misuse. 118 The domain of manageability was cause for significant further concern as Dr Haeney considered Mr Crouch resistant to treatment for his sexual re- offending. Dr Haeney considered it significant that Mr Crouch had consistently re-offended despite three treatment programs in which Mr Crouch apparently engaged well and despite an ESO and ANCOR registration. Accordingly, Dr Haeney considered the prospect of response to further treatment not promising. 119 Mr Crouch demonstrated a number of concerning risk factors that will remain live going forward which have not been adequately addressed. Dr Haeney described Mr Crouch’s offending as long lasting, diverse and immutable and not prevented by treatment and supervision. 120 Dr Haeney considered Mr Crouch’s deviant sexual drive persisted with evidence of previous and ongoing cognitive distortions which increased his risk of -- 20 of 29 -- [2024] SASC 57 Stein J 19 recidivism. Mr Crouch’s long history of offending despite treatment and supervision demonstrated significant risk that he would re-offend if given the opportunity to do so. Department of Correctional Services information 121 A letter dated 18 May 2023 from the Department for Correctional Services to the Director records that Mr Crouch completed sexual offending programs in 2009 and 2018. Participation in those programs and the benefit of completing another program of the same type would be considered by the Sentence Management Unit in conjunction with the Rehabilitation Programs Branch. 122 Mr Crouch previously completed the Sexual Behaviour Clinic which is delivered to sentenced prisoners assessed at being a moderate to high risk of sexual re-offending. He would have to consent to participate in assessment for the programs. 123 A special aspects pre-sentence report prepared on 12 December 2023 by the Department for Correctional Services identified the SBC-me program as a program delivered to sentenced prisoners assessed at being moderate to high risk of sexual re-offending who have identified intellectual, learning or developmental disabilities. 124 The program uses psychological techniques to address values, attitudes, emotions, and behaviours that contribute to sexual offending. Key treatment areas include problematic sexual fantasy and arousal, offence supportive attitudes, empathy and victim awareness, intimacy and relationships, emotional management, and substance abuse. The purpose is to contribute to public safety by giving offenders the skills to manage their thoughts and emotions and improve their ability to deal with problem situations. 125 Programs run for different lengths of time and are scheduled according to need. Prisoners assessed as eligible are added to a wait list which is prioritised according to conditional release dates and sentence end dates. Program scheduling also considers availability of prison room locations and staff availability. 126 Mr Crouch completed the SBC program in Port Lincoln Prison. The letter stated that the strict criteria in relation to suitability for the SBC-me course would not be overridden to include Mr Crouch in the program. Further, Mr Crouch needed to be sentenced before he can be assessed for suitability for the SBC-me course. If cognitive testing was required, this may add to the time required to assess what program would be most suitable for Mr Crouch. 127 Once a sentenced person’s individual development plan is finalised for the SBC, generally a minimum of 12 to 18 months in custody prior to end of release date is required to allow participation. -- 21 of 29 -- [2024] SASC 57 Stein J 20 Prison health report 128 A report dated 6 December 2023 from Prison Health Services indicates prostate cancer level tests are conducted every three months to assess Mr Crouch. His results show stability and reduction in levels from March to September 2023. A prostate MRI in July 2023 showed stable disease in comparison to imaging in July 2022. In August 2023, Mr Crouch was offered and declined a further biopsy as he would need to be transferred to Adelaide. No other treatment was proposed at this stage. 129 There were no records documenting testosterone or androgen deprivation therapy. Prosecution submissions 130 The prosecution relied on a number of matters, which I summarise below, in support of the contention that Mr Crouch is incapable of controlling, or unwilling to control, his sexual instincts. 1. Dr Raeside’s opinion that Mr Crouch is unwilling to control his sexual instincts; that if given the opportunity he would likely act on his sexual urges and commit further offences; and that he is at significant risk of not only engaging in child exploitation material but again committing contact sexual offending. 2. Dr Haeney’s acknowledgement that while Mr Crouch was able to refer to many core themes of the sexual offending treatment programs, he nevertheless continued to offend often within a short period following release from custody. Mr Crouch acknowledged to Dr Haeney that he was most sexually aroused by activity showing sexual interactions between children from aged eight or above and his preferred sexual interest was mainly females but also males usually 10 years of age and above. 3. Dr Haeney’s view that Mr Crouch’s offending shows chronicity and diversity and has spanned 30 years despite imprisonment and treatment programs. 4. Dr Haeney’s opinion that those who commit multiple kinds of sexual offences are at increased risk of recidivism. Mr Crouch’s long history of offending despite treatment and supervision demonstrated a significant risk he will re-offend given the opportunity to do so. 5. Both Dr Raeside and Dr Haeney opined that Mr Crouch is unwilling to control his sexual instincts within the meaning of s 57(1) and accordingly the power exercisable under s 57(7) is enlivened. -- 22 of 29 -- [2024] SASC 57 Stein J 21 131 In relation to the whether the discretion should be exercised to order indefinite detention, the prosecution relied on the following matters as weighing strongly in favour of such an order. 1. Mr Crouch is at a high risk of further sexual offending with an extensive history of contact and non-contact offending extending to both males and females across pre-pubertal and post-pubertal age ranges. Offending against both male and females as well as pre-pubertal and post-pubertal aged children increases the risk because the offending is broader in nature. 2. Mr Crouch’s earliest known offending commenced in 1989 and concluded with his arrest most recently in 2022. 3. Mr Crouch has committed serious sexual offending and received substantial terms of imprisonment. 4. Drug and alcohol use are not causative factors, however substance abuse is a disinhibiting factor in Mr Crouch ’s offending. 5. Mr Crouch has participated in three sexual offending programs so far with apparently little benefit. There is conflicting evidence regarding Mr Crouch’s self-awareness. Thus far, no forms of treatment have impacted upon his offending behaviour. 6. Dr Raeside gave evidence it would be unusual for a prisoner to do more than two courses of sexual offending programs. He observed that it would not matter how many times a person did the program if the course is not really addressing the underlying problems. 7. No other forms of treatment are likely to have an impact on Mr Crouch’s risk of re-offending. 8. The evidence suggests Mr Crouch has not adequately addressed his static risk factors. While Mr Crouch’s risk profile may change, nevertheless, Dr Raeside’s opinion is that Mr Crouch would still remain at high risk, but less high risk than if he were depressed or abusing substances. 9. Mr Crouch poses a high risk of further sexual offending. Mr Crouch has accessed court transcripts and previous images suggesting an ongoing interest with a high risk of moving to contact offending if Mr Crouch has the opportunity to do so. 10. Mr Crouch has continued to reoffend despite being subject to ANCOR obligations and being placed on an ESO. Further, the breaches of the ESO were in relation to attempts to access the internet and thus taking steps which would increase the risk of further offending. -- 23 of 29 -- [2024] SASC 57 Stein J 22 11. Any trial of anti-libidinal medication has not commenced. Further, levels of testosterone may or may not have any real bearing on Mr Crouch’s sexual urges. There is no information relating to testosterone treatment or androgen deprivation therapy documented in prison health medical records. The only inference to draw is that Mr Crouch is not on a formal wait list to commence such treatment. There is no objective measure in relation to the efficacy of the treatment insofar as it relates to reducing a risk of further offending. Dr Raeside suggested that a trial of antilibidinal medication could commence prior to completion of another program, such as the SBC-me, but could not offer any opinion as whether Mr Crouch would be considered appropriate for that modified program. 12. As Mr Crouch has been in custody since March 2022, any sentence would be backdated. If potential treatment options were to be made available the length of incarceration would need to incorporate an antilibidinal trial, completion of the SBC-me course (if Mr Crouch was deemed suitable) and evaluation of the effectiveness of both courses which would not take into account potential wait lists for the courses. 13. The procedural mechanism for the Attorney-General to apply to the Supreme Court under ss 57(3), (4) and (5) cannot be made more than 12 months before a person is eligible to apply for release on parole. The timeframe in which to bring such an application may be narrow. It is likely nothing will change in the intervening period so as to appreciably reduce the risk of Mr Crouch returning to the community. 14. The application is not premature taking into consideration the likely length of sentence and the length of time of any further treatment in custody, assuming Mr Crouch was considered a suitable candidate. 15. Mr Crouch had historically re-offended soon after release as follows: (a) release on parole in September 2004, head sentence expiring December 2005, contact offending in March 2006; (b) release from custody in April 2012, offence relating to listening device in July 2014 and possess child exploitation material in March 2015; (c) release from custody in May 2020, offence relating to child exploitation material in March 2022. This was consistent with offending approximately two years after release. 16. An order for indefinite detention is required to achieve a satisfactory level of protection for the community. -- 24 of 29 -- [2024] SASC 57 Stein J 23 Defence submissions 132 Mr Crouch opposed the s 57 application. 133 Mr Crouch accepted he had been convicted of a relevant offence and admitted the contents of his offender history report and his prior convictions. 134 Mr Crouch accepted the pre-requisite to making an order, that is, satisfaction he is unwilling to control his sexual instincts, was established. However, Mr Crouch submitted the application ought to be dismissed as the making of such an order would not be appropriate because protection of the community is not required. 135 Mr Crouch relied on the fact he has not committed contact offending since 2006, a period of approximately 18 years, as a matter of significance. Mr Crouch pointed to Dr Raeside’s acceptance that a diminishing in sex drive may explain why there has been no further contact offending given Mr Crouch is now in his 50s and the last contact offending occurred when he was in his 30s. Mr Crouch also referred to Dr Raeside’s acceptance that diminishing sex drive could be one of the reasons and it was possible Mr Crouch did not want to offend against children. 136 Mr Crouch submitted that the exceptional step of an order for indefinite detention based on what it is feared a person might do should not be taken in all of the circumstances in light of Dr Raeside’s evidence. 137 Mr Crouch distinguished his position from cases such as Driver11 and Mountford12 which involved significant contact offending. 138 Relying on the statement by Dr Haeney to the effect that it cannot be said with any reliability that Mr Crouch’s offending had escalated given that his contact sexual offending was his earliest offending, Mr Crouch submitted there has not been escalation but rather a reduction in his offending given there had been no contact offending for some time. 139 Mr Crouch submitted that in all of the circumstances, I should hesitate in granting the application given there has been approximately 18 years since any contact offending. He submitted that the Court did not know what might or may occur in the future, including in the circumstances in which Mr Crouch was to be sentenced for his offending and he accepted a significant sentence of imprisonment would be opposed. Mr Crouch submitted the s 57 application could be deferred. Is Mr Crouch unwilling to control his sexual instincts? 140 Mr Crouch did not dispute the opinions of the psychiatrists. In any event, I am satisfied that the evidence cogently establishes that Mr Crouch has been 11 Attorney-General (SA) v Driver [2021] SASC 66. 12 R v Mountford [2019] SASC 16. -- 25 of 29 -- [2024] SASC 57 Stein J 24 convicted of a relevant offence and that Mr Crouch is unwilling to control his sexual instincts within the meaning of the legislation. 141 Mr Crouch accepted that the prerequisites to the exercise of the discretion are enlivened. Exercise of discretion 142 I must consider the risk that Mr Crouch poses to the community and whether an order for indefinite detention is required for the protection of the community in the sense explained by the authorities to which I have referred above. 143 In the circumstances of this case, the factors most relevant to the assessment of the protection of the safety of the community, having regard to the risk to the community posed by Mr Crouch, are: • the opinions of Dr Raeside and Dr Haeney; • the nature of Mr Crouch’s offending; • the relevance of Mr Crouch’s contact offending last occurring in 2006; • Mr Crouch’s age; • Mr Crouch’s prostate cancer and its potential implications; • Mr Crouch’s engagement in past treatment programs and the impact of those programs; • potential further treatment and programs; • the potential deterrent effect of custodial sentences and other court orders and obligations. 144 While I have focussed on these matters, I have taken into account all of the material before me and the submissions in considering the exercise of the discretion. Opinions of the psychiatrists and past offending 145 I have set out above the history of offending and the summaries of the reports and opinions of Dr Raeside and Dr Haeney. The history is acknowledged by Mr Crouch. 146 Neither Dr Raeside nor Dr Haeney are of the view that Mr Crouch should be released back to the community. Length of time since contact offending 147 Mr Crouch has not committed contact offended since 2006. -- 26 of 29 -- [2024] SASC 57 Stein J 25 148 Of the time that has elapsed since his last contact offending, that is, approximately 18 years, Mr Crouch has spent over 12 years in custody. He has re- offended on each occasion about two years after release. 149 As Mr Crouch’s contact offending was his first offending, Mr Crouch’s offending cannot be described as having escalated. It is unclear what factors have resulted in Mr Crouch not committing further contact offending. However, despite the chronology of offending, Dr Raeside considered Mr Crouch remains a significant risk of not only engaging in child exploitation material but also committing contact sexual offending. I will not summarise again the matters upon which Dr Raeside relied. I note, however, the significance of Mr Crouch’s possession of the eBook, trial transcripts and images of his previous victim which Dr Raeside considered indicated Mr Crouch’s ongoing interest and a high risk of moving to contact offending if there was an available opportunity. Mr Crouch’s explanations for his possession of, and access to, those materials were not plausible and the relatively recent access to those materials was consistent with Mr Crouch remaining interested in them. 150 Dr Haeney also considered Mr Crouch at significant risk of re-offending if given the opportunity. While Dr Haeney did not opine expressly on Mr Crouch’s risk of returning to contact offending, he pointed to Mr Crouch’s deviant sexual drive and ongoing cognitive distortions as increasing the risk of recidivism. 151 I accept the opinions concerning the overall risk and Dr Raeside’s specific opinion as to the risk of Mr Crouch resuming contact offending. 152 While there is a risk of offending against adults, the psychiatric reports indicate risk in relation to children of both genders, teenagers and young children. Age 153 Mr Crouch is now in his 50s. Dr Raeside accepted diminishing sex drive might explain the absence of further contact offending. However, as sexual interest also depends on cognitive and social factors, Mr Crouch’s age may or may not have any real bearing on his sexual urges and risk of acting on such. 154 Dr Raeside and Dr Haeney were aware of Mr Crouch’s age when they formed their respective opinions as to Mr Crouch’s risk profile which was not of itself sufficient to result in a reduction in their assessment of his risk. Prostate cancer 155 Mr Crouch has been diagnosed with prostate cancer. While treatment such as removal of his prostate or anti-libidinal medication could decrease his opportunity to act on any sexual arousal, there is no evidence that Mr Crouch is to have any such treatment. As set out above, he has declined a biopsy and regular testing confirms his disease is stable and controlled. -- 27 of 29 -- [2024] SASC 57 Stein J 26 Potential deterrence 156 Custodial sentences have not acted as a deterrent, although Dr Raeside accepted it is possible that incarceration had deterred Mr Crouch from engaging in further contact offending. 157 Mr Crouch has breached bail and extended supervision conditions in ways which increased his risk of further offending. Treatment programs 158 Mr Crouch has completed the Sexual Behaviour Clinic, or an equivalent, on three occasions. 159 The consequence of the sentence and non-parole period I have imposed is that Mr Crouch would remain in custody for a minimum of about 11 months and a maximum of about 20 months in the absence of an order detaining him indefinitely. Based on the information in the letter from DCS, this may or may not be sufficient time to complete a further program. 160 I have considered whether the prospect of Mr Crouch being accepted into, and completing, a further program is sufficient basis to exercise the discretion to refuse the application. Even if I assume in Mr Crouch’s favour that he will be able to, and will take part in, such as program, I have concluded that is not enough by itself or in combination with other factors to justify refusing the application. 161 Mr Crouch previously engaged in the programs, was able to cite the core themes to Dr Haeney and learned strategies to implement through completing the courses. Nevertheless, Mr Crouch continued to offend. 162 Mr Crouch continues to display impaired insight, minimisation and cognitive distortions. 163 Dr Haeney thought Mr Crouch was resistant to treatment for his sexual re- offending and considered the prospect of response to further treatment was not promising. 164 Dr Raeside considered the SBC course was not effective for Mr Crouch. He took the view that if the course did not address the underlying problem and as such it would not be rectified by repetition. 165 While Dr Raeside thought a modified SBC-me program may be worth consideration, there is no suggestion Mr Crouch meets the threshold requirements for inclusion in such a course. 166 The fact Mr Crouch was able to cite core themes to Dr Haeney does not suggest the modified SBC-me course was required to enable Mr Crouch to engage with or understand the course contents. -- 28 of 29 -- [2024] SASC 57 Stein J 27 167 The opinions of Dr Raeside and Dr Haeney support the conclusion that further repetition of the available treatment programs are unlikely to be highly effective. That said, if Mr Crouch in the future asks to engage in rehabilitation programs, his motivation together with Dr Raeside’s views should be taken into consideration. Other factors 168 While it appears that reducing Mr Crouch’s depression and undertaking hobbies would reduce Mr Crouch’s risk, Dr Raeside thought Mr Crouch would remain in the high risk range of re-offending. 169 Drugs and alcohol would increase his risk. 170 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 171 There is ample evidence that Mr Crouch’s risk to the community is high. 172 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. 173 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. 174 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. 175 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 176 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. -- 29 of 29 --