Director of Public Prosecutions v Buckley
[2015] VCC 2011
•11 September 2015
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 14-02183
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN HAMILTON BUCKLEY |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 July 2015 | |
DATE OF SENTENCE: | 11 September 2015 | |
CASE MAY BE CITED AS: | DPP v Buckley | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 2011 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Borg | Office of Public Prosecutions |
| For the Offender | Mr A. Brand |
HER HONOUR:
1 John Hamilton Buckley, you have pleaded guilty to five charges of indecent assault upon a male person (Charges 1, 2, 3, 4 and 5), three charges of indecent assault (Charges 6, 7 and 11), three charges of gross indecency (Charges 8, 10 and 12), one charge of sexual penetration with a person aged between ten and sixteen (Charge 9) and one charge of possession of child pornography (Charge 13).
2 Your offending, apart from Charge 13, occurred between 1980 and 1983. At that time you were the housemaster of a boarding house at Glamorgan School in Toorak. Glamorgan is the junior or primary school campus of Geelong Grammar School. You were also a classroom teacher at the school. You offended against six boys who were or had been students at Glamorgan. Each of the victims was sexually assaulted whilst they were in your care. That matter is relevant to the maximum penalties in respect of Charges 8, 9, 10 and 12. There have been changes in the relevant legislation over time which is why similar conduct has given rise to different offences. The maximum penalties have increased and I have taken into account the maximum penalties available at the time of your offending. The maximum penalty for indecent assault was five years' imprisonment. The maximum penalty for gross indecency in these circumstances was three years' imprisonment. The maximum penalty for sexual penetration of a person between ten and 16 in these circumstances was 15 years' imprisonment. The maximum penalty for possession of child pornography is five years' imprisonment.
3 The details of your offending are set out in the Amended Summary of Prosecution Opening which was tendered as Exhibit A. In brief, the circumstances of your offending are as follows. You were thirty-eight to forty years old at the time of the offending against the boys. The offending occurred at the boarding house of the school. The boarding house was separated into two halves, with one half being occupied by student boarders and the other half being your living quarters. In addition to being a teacher and housemaster you ran school drama productions and often accompanied students on school camping trips. You were very popular, well liked and trusted by students and their parents.
4 The offending covered by Charges 1 to 5 concerns a victim whom I will call “WN”. WN was a student of yours between 1975 and 1981. You offended against him between 1 March 1980 and 28 February 1981 when he was ten to 12 years old. You became close to WN’s family through the school and also because you had a common interest in art. WN was a day student but he and other students would sometimes sleep over in your quarters or in the students’ quarters at the boarding house. On some of these occasions you would watch pornographic movies and look at pornographic magazines with the boys after their showers and whilst they were drying themselves.
5 On one occasion, WN was looking at pornography with you and other boys and asked if he could spend more time looking at the pornography. You told him that you would come and get him when the others went to bed. Once the other boys had gone to bed, you went into WN’s bedroom then took him into your bedroom where you sat on your bed and looked at pornographic magazines together. You began touching and caressing the victim. You then licked his nipples and rubbed his penis over the top of his pyjamas. You then took his pyjamas off. You put his penis in your mouth and performed oral sex on him (Charge 1, indecent assault).
6 On another occasion, you and WN were in your bed looking at pornographic magazines. You again caressed his back, buttocks and penis. You were naked. You licked his nipples before putting WN’s penis into your mouth and performing oral sex on him (Charge 2, indecent assault). You then told WN to masturbate your penis which he did.
7 On another occasion, you were again in your bed looking at pornographic magazines. Again, you caressed WN in the same way and licked his nipples. He masturbated your penis. You then put your finger in his anus (Charge 3, indecent assault)
8 On another occasion during rehearsals for a school production, you took some boys out to dinner. WN stayed over at your quarters. You came and got him to come with you to look at more pornographic magazines. You then both sat in your bed looking at pornographic material. Again, you rubbed WN’s back, buttocks and penis. You licked his nipples before placing his penis in your mouth and performing oral sex on him (Charge 4, indecent assault). You then placed your finger in the victim’s anus (Charge 5, indecent assault). You then instructed the victim to masturbate your penis which he did.
9 The offending in Charge 6 concerns a victim whom I will call “NY”. NY was in Grade 6 at the school in 1983 and was around twelve years old at the time of offending. You were his Grade 6 teacher. He was a day student. In October 1983, NY’s parents went overseas and he was staying at his aunt’s house. NY had been involved in school plays and in creative writing. While his parents were away, you invited him to stay over at the school. On one occasion, you took NY and another boy to dinner. You took them back to your living quarters for a bath. You watched them naked in the bath. After the bath, you asked NY and the other student if they would like a massage. They both agreed. You massaged both of them with baby oil on your bed whilst they were both naked (Charge 6, indecent assault).
10 During the massage on NY, you made comments about imagining it was one of the girls that NY liked and focused on his groin area and pinched his nipples. The following morning, you offered to have him stay over again to have more “fun”. You also offered to give him special adult literature as long as the boy kept it a secret. On returning to his aunt’s house, NY told his aunt what had occurred. She told the parents who approached the school principal and notified him of this incident. Nothing came of the complaint. NY was never allowed to stay at your living quarters again and was told that your massage was not appropriate.
11 Charge 7 concerns a victim I will call “HM”. The offending against HM occurred between 1 January 1983 and 20 December 1983. HM was in your Grade 6 class. HM’s older brother, who is the victim in respect of further charges, had previously spent nights at your quarters. HM also wanted to spend nights which his parents allowed him to do. On one occasion, you took HM and another student to a video store and allowed them to pick any videos they wanted, including R‑rated videos. You then returned to your living quarters and started discussing sex with them, asking what sexual experiences they had had. You told them that it was normal for them to experiment with other boys. On the final occasion HM stayed, he was by himself. You gave him champagne to drink and then got him to sleep in your bed with you. HM got into your bed with his pyjamas on. He believed you were naked but did not see you naked. You got into bed. You then hugged HM from behind and HM fell asleep in this position (Charge 7, indecent assault).
12 Charges 8 and 9 concern the victim NM, who is the older brother of HM. At the time of the offending between 1 November 1983 and 31 December 1983, NM was thirteen years old. He had been a student of yours but was at that time in secondary school. On one occasion NM was staying over in your quarters. He was about to go to sleep. You told NM that there was a jar of Vaseline and box of tissues beside his bed if he wanted to masturbate. On another occasion, you asked him whether he had masturbated. You then started taking photos of NM and asked him to take his clothes off, which he did, except for his underwear. You continued to take photos of him, whilst dictating sexual poses he should undertake for the photographs (Charge 8, gross indecency). NM was later shown photographs by the police which he confirmed as being photographs of himself posing as a child.
13 On an occasion which may have been the same night, the victim NM got into your bed and you gave him a back massage. He then turned on his back at which point you put your mouth over his penis and performed oral sex on him (Charge 9, sexual penetration). NM pushed your head away, thinking he was about to ejaculate. You made a comment about tasting his semen. NM recalls feeling embarrassed and confused about this incident. After that he did not return to your premises.
14 Charge 10 concerns a victim whom I will call “TT”. The offending against TT occurred between 1 September 1983 and 31 December 1983. At that time, TT was a student in Grade 6 and you were his home room teacher. In the period of the offending, TT stayed at your living quarters on campus several times so that you could mind him for his parents. On one occasion, TT recalls staying over with a fellow student. You came into the room and encouraged both boys to engage in sexual experimentation. On the next occasion that TT slept over, he was alone with you. You went out to dinner and then returned to your living quarters and played a card game similar to strip poker. During the card game you kissed the victim on the buttocks. The card game eventually resulted in you both being naked. At the end of the card game, you used one of your “wild cards” to dictate that both you and the victim must remain naked when you went to sleep in your bed, which you did. You used another “wild card” to get the victim to massage your back. The victim complied and started massaging you on your back, when you then started to gyrate and move on the bed. The victim could see that you had an erect penis and heard you moaning. At one point, you said to the victim that you wanted him to pretend that he was Bo Derek and make love to him (Charge 10, gross indecency). The next morning when TT got out of the shower, you watched him get dried. TT did not stay again.
15 Charges 11 and 12 concern a victim I will call “YN”. The offending against YN occurred between 1 October 1983 and 31 December 1983. At this time, you were his Grade 6 home room teacher. On an occasion in 1983, YN was in the school sick bay. You went in to see him. You caressed his leg and penis over his clothing (Charge 11, indecent assault).
16 On another occasion, YN was staying over at the same time as HM. YN recalls watching a movie and looking at pornographic magazines. He recalls you discussing sex and pubic hair with both boys and exposing your penis to show them your pubic hair. You asked YN to touch and kiss your penis, to which he agreed. You then took YN’s penis and started to masturbate his penis (Charge 12, gross indecency). You told YN that these things must remain a secret.
17 On 13 June 2013, you were arrested. You were later interviewed and admitted that you often discussed sex and masturbation with boys, given that they initiated the discussions. You admitted knowing the boys and on occasion giving them massages but denied sexual offending against them. In relation to oral sex with the victim NM, you did say that you did not remember that happening, but you said it was pretty bad if it did and that you were not going to flatly deny it. You did accept that two of the victims had given an accurate description of your pubic hair in respect of your genital area.
18 Your properties were searched on the day of your arrest. A search of your holiday home located numerous photos containing images of naked or semi-naked children (Charge 13, possess child pornography). Some of these photos appear to have been taken on a Polaroid camera. The photos and clothing worn suggested they were taken some time ago. The photographs were categorised based on the Australian Child Exploitation Material Categorisation Scheme as being: 87 Category 1 images (children under 18 erotically posed or images taken covertly with no sexual activity); nine Category 2 images (children under 18 involved in non-penetrative sexual activity). The children generally ranged from younger to older teenage boys. There were no very young children under the age of ten.
19 In a later interview on 27 February 2014, you said you would often take photographs of children walking around in their underpants. You said that the photographs were taken down to your beach house when you purchased that property and that some photos were also taken at that property. In respect of some of the photos of children naked or near naked you said you probably took them but did not see them as child pornography, although looking back the parents probably would not have given permission for the photos, but most of the children wanted their photos taken.
20 I have viewed a sample of the Category 1 and Category 2 photographs which demonstrates clearly that you posed the boys in sexual poses and that you had a sexual interest in the boys that you were photographing. You were interviewed on 1 August 2013 in relation to the photographs and confirmed that the photographs belonged to you and mostly taken by you. You said they were taken some time ago. You did not think there was anything untoward about them. You identified a number of the children as students or family friends and that some of the photos were taken at the school.
21 The charges were resolved prior to committal mention and you indicated that you would be pleading guilty.
22 The prosecutor seeks an order for the taking of a forensic sample from you. The making of that order was not opposed.
23 In respect of the Sex Offenders Registration Act 2004, you are liable to lifetime reporting as a consequence of pleading guilty to three or more Class 2 offences.
24 All the charges are sexual offences under the serious sexual offender provisions. If you are sentenced to a term of imprisonment on Charges 1 and 2, then you will fall to be sentenced as a serious sexual offender on the third and subsequent charges. The prosecution does not seek a disproportionate sentence, but protection of the community remains the principal purpose for which the sentence is imposed on those charges and cumulative sentences are to be imposed on each of the serious sexual offender charges unless otherwise directed by the court pursuant to s6E of the Sentencing Act 1991.
25
A report was tendered from Mr Patrick Newton, clinical and forensic psychologist, dated 15 July 2015 (Exhibit 2). Mr Newton also gave evidence at the plea hearing. Mr Newton has seen you seven times between
18 September 2014 and 1 July 2015. In his report, Mr Newton sets out your personal history and I have taken those matters into account in sentencing you.
26 You are now 74 years old. You were brought up in country Victoria. Your childhood was unremarkable other than your father being away on military service during the Second World War. You clearly were very gifted academically and did well at school, although you had few friends. You completed a four year Diploma of Fine Art. Again, you were academically successful. You have completed further post-graduate studies in fine arts internationally and have been the recipient of a number of travelling scholarships and awards.
27 You worked as a teacher between 1961 and 1982. You taught at Geelong Grammar’s Corio Campus between 1961 and 1967 prior to going overseas. You completed your Bachelor of Education qualification in Vancouver, Canada, between 1970 and 1972. You again taught at Geelong Grammar at the Glamorgan School between 1979 and 1982. Since then you have engaged in a distinguished career in activities associated with the arts, working variously as a curator, art consultant, academic and gallery owner.
28 Mr Newton says that you identify predominantly as homosexual in orientation, although you have had some relationships with women. You say that you were aware of your sexuality at quite an early age but had to hide that as it was unacceptable to be gay or bisexual in those times. You had your first sexual relationship at about age thirty, which was relatively short-lived. You did not have any stable relationships until well into your forties. Your main relationship took place in the late 1980s and lasted for about a year. Since that time, you have had several relationships but none were long lasting. You now have a large group of friends.
29 You suffer from a number of chronic health conditions consistent with your age. You have no history of problematic alcohol or drug use. Mr Newton says that you have symptoms of anxiety and depression which have arisen as a direct response to your ongoing prosecution. He says that those symptoms are sufficiently severe to meet the diagnostic criteria for an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He suggests that you could develop severe emotional distress in the period following sentencing. Mr Newton suggested that you would be likely to experience deterioration in your mental state if you were imprisoned and would be expected to experience ongoing episodes of mood disturbance. Given your pre-existing emotional distress, he would expect this to be at a greater level than is typical of a prisoner not afflicted in that way. Mr Newton suggests that factors such as your age, social background and the publicity that has attached to these matters would add particular challenges to your experience of custody.
30 Mr Newton says that you were sexually immature and naïve well into your adult years and that your introversion is intense, although within the broader category of normal personality variation. Mr Newton’s opinion is that you were a relatively immature person in terms of your sexual adjustment well into your adult life. He says you were concerned about your adequacy and fears of rejection if others were to come to know of your sexuality. Mr Newton says your offending took place within this context.
31 Taking into account historical risk factors and various protective factors, it is Mr Newton’s opinion that your overall risk of recidivism to sexual offending would be low. Mr Newton says that you have made positive progress during the time he has seen you in reflecting on your behaviour and the cognitive distortions underpinning it. He says that you now manifest remorse and have clear empathy for the complainants. He suggests that you ought continue with effective treatments. He says these treatments would have a good prospect of success in your case. Mr Newton refers to factors such as your otherwise good character, your lack of behavioural problems, stable accommodation, support of friends, your work skills and intelligence, absence of antisocial personality features and assessments that indicate you are at low risk for sexual recidivism. He suggests that there are “sound grounds for considering [your] prospects for a lasting and positive adjustment in the community to be excellent”.
32 In his oral evidence to the court, Mr Newton expanded on his report. In respect of your likely experience of imprisonment, he conceded that all prisoners were likely to suffer emotional distress, especially when it was their first time of imprisonment, but he considered that this would be increased in your case because of a number of factors. He said you were also likely to be vulnerable in custody.
33 In respect of your insight and various issues arising from the offending, Mr Newton described this as a work in process. Mr Newton suggested that you would be more suitable for an individualised treatment program rather than a usual group program.
34 Mr Newton described the anxiety that you had felt during the period of two years between you being charged and the plea hearing. Mr Newton says that you now understand “comprehensively” the wrongfulness of your offending and that you are now in no doubt as to that and the negative impact that your offending has had on the victims. Mr Newton explained that your thinking had changed during your discussions with him and compared to your thinking as it had been at the time of the offending in terms of the appropriateness or otherwise of your conduct. Mr Newton says that you do not meet the criteria for a paedophilic disorder.
35 Character references were provided (Exhibit 3). Those references describe your successful career and the impact that there has been on you due to these matters being made public. It appears from one reference that you are distressed at having to resign from clubs and as to the harm these charges might cause your former colleagues and the school’s reputation. The references generally describe your kindness to others and the help you have given to other people over the years. A reference from a member of one of the clubs from which you have resigned does describe the positive contribution you made to the club and also the remorse which you have expressed to him as to this offending. Another person also describes your remorse and the impact that the exposure of your offending has had on you.
36 In sentencing submissions your counsel addressed the gravity of the offending and accepted that your offending was a betrayal of trust. Your counsel submitted that the subject matter of Charges 6 and 7 might be regarded as less serious than the subject matter of other charges.
37 In respect of Charge 13, possession of child pornography, your counsel submitted that there was a different objective gravity in respect of this offending and that it should be taken into account that the photographs were taken some time ago in the context of your interest in photography and were not stored for any aggravating purpose such as dissemination or sale. Your counsel said that there were a limited number of photographs and that they had occurred in the context of you having a genuine interest in photography. You had taken the photographs and had not disseminated them. Your counsel submitted that the possession of photos taken by yourself ought to be distinguished from the downloading of pornography from the internet or dissemination of pornography on the internet and submitted that general deterrence would not have the same force. Counsel submitted an appropriate sentence would be a fine, or a suspended sentence, or a sentence of imprisonment with significant concurrency.
38 Your counsel submitted that it should be borne in mind that the circumstances of Charge 8 of gross indecency included the taking of one of the photographs which was found in your possession.
39 In respect of the remaining charges your counsel submitted it should be taken into account the penalties for this type of behaviour had increased over a period of time and that the maximum penalties appropriate at the particular time had to be taken into account.
40
In mitigation your counsel relied on a number of matters. Your counsel relied on the contents of the references provided and said that you had a very good reputation and professional life and had suffered a loss of standing. Your counsel relied in mitigation also on your plea of guilty which had been, he said, at the earliest practical stage, taking into account that this was a complex prosecution. Your counsel argued that your plea of guilty was an admission of responsibility and an expression of remorse. He relied on
Mr Newton’s evidence to submit that you acknowledged your responsibility and had an understanding about the impact on the victims.
41 Your counsel also relied on the delay in this matter, which had been hanging over your head for a period of time.
42 Your counsel submitted that there had been significant rehabilitation since this offending and that on the evidence of Mr Newton there was a low risk of you re‑offending given your development and insight. Your counsel submitted that specific deterrence ought to be given little or no weight in sentencing. Your counsel also submitted that community protection should not carry any additional weight in sentencing you.
43 Your counsel submitted also that your advanced age was relevant and a crushing sentence ought be avoided.
44 Your counsel submitted that the fifth and sixth principles set out in Verdins should operate in mitigation of sentence given Mr Newton’s evidence. The submission was that your mental state would make conditions in custody more difficult for you.
45 Your counsel submitted that a number of the statements of the Court of Appeal in Boulton & Ors v R [2014] VSCA 342 ought have application to your case. He submitted that a sentence of imprisonment to be followed by a community correction order, which could be lengthy, would meet the sentencing objectives of general deterrence, denunciation and just punishment. If I were against your counsel in that, he submitted that the same arguments would be applicable to the setting of a shorter than otherwise non-parole period.
46 The prosecutor submitted that a community correction order or imprisonment of up to two years to be followed by a community correction order would be falling into appellable error. The prosecutor submitted that taking into account what the Court of Appeal said in Boulton, there were still cases where the objective gravity meant that imprisonment to be followed by a community correction order would be inadequate for the purposes of just punishment and general deterrence.
47 The prosecutor addressed the gravity of your offending. He submitted that it should be borne in mind that there were six complainants and that the offending had occurred over a period of time. The prosecutor conceded that the subject matter of Charges 6 and 7 may not be as serious as the subject matter of other charges.
48 The prosecutor also accepted that the offending in Charges 4 and 5 probably occurred on the same night and that the offending in Charges 8 and 9 probably occurred on the same occasion. The prosecutor said that the offending all involved gross breaches of trust given that you were a teacher and a boarding house master. In respect of Charge 11, the prosecutor submitted that you had exploited an opportunity in relation to a boy who was vulnerable because he was sick.
49 The prosecutor submitted that in respect to your loss of capacity to work in the art industry as a result of this offending, it should be taken into account that you were at an older stage in your life and that this would not have the same impact on you as it would have if the offending had come to light earlier. The prosecutor submitted that modest weight ought to be given to the stigma that your offending had brought on you.
50 The prosecutor accepted that your guilty plea had been made at the earliest opportunity and was of very significant utilitarian benefit, and did not quibble with the conclusion that there was a relatively low risk of you re-offending. The prosecutor also addressed Mr Newton’s evidence and submitted that there was some qualification on your degree of remorse. The prosecutor accepted that imprisonment would weigh more heavily on you because of your psychological health and that your psychological health may deteriorate in prison. The prosecutor also submitted that there ought to be modest application of Verdins principles.
51 In respect of delay the prosecutor submitted that the delay was not significant in this case. The prosecutor submitted that it ought to be borne in mind that matters would have proceeded more quickly if you had made admissions when first interviewed by police. The prosecutor accepted that specific deterrence would have little role to play in sentencing you.
52 The prosecutor submitted that the different maximum penalties applicable at the time of your offending ought to be a guide in terms of taking into account sentencing practices at that time.
53 In respect of the possession of child pornography charge, the prosecutor accepted that overall your offending was towards the lower end in light of the various factors set out in DPP v Smith [2010] VSCA 2015. He submitted that general deterrence remained the paramount sentencing consideration and that a sentence of immediate imprisonment would ordinarily be warranted. If it were thought that an actual custodial sentence was not warranted and that a suspended sentence may have to be imposed, then that could be dealt with by making any sentence fully concurrent or with a modest amount of cumulation. The prosecutor said for the purposes of community protection there should be some cumulation, although it should be borne in mind that there was an overlap in circumstances with Charge 8. The prosecutor argued that there should also be some cumulation as between the six complainants, noting that cumulation would be required under the serious sex offender provisions unless the court otherwise ordered.
54 In response to the prosecutor’s submissions, your counsel said that you had been expecting to work as long as you could and that there was no reason why you would have to stop working at this stage, given the type of work you were engaged in. It has been your intention to continue work as an art consultant. Your counsel said that there had been some delay due to separate interviews after further complainants came forward.
55 In respect of cumulation, your counsel submitted that while s6E of the Sentencing Act 1991 would apply in respect of any sentences imposed as a serious sexual offender, that did not mean that the principle of totality could be disregarded and nor could the need to avoid the imposition of a crushing sentence be disregarded.
56 John Buckley, the offending against the boys in your care occurred between 1 March 1980 and 31 December 1983. At that period of time, you were between thirty-eight and forty years old. You had been a teacher for some years and had completed your Bachelor of Education qualification. You had by that time had sexual relationships. The way in which you behaved towards these boys was clearly absolutely wrong. Despite what you said to Mr Newton, I conclude that you knew at the time that your behaviour was inappropriate. You knew that your behaviour would be regarded as wrong and completely inappropriate by others, even if you had justified it to yourself. You took steps to ensure that other people did not find out about your behaviour.
57 You took advantage over a long period of children who were in your care and who were vulnerable because of their age. You also took advantage of their normal and natural interest in sexual matters to pursue your own sexual gratification. You introduced sexual topics and sexual behaviour to them. You engaged in manipulative behaviour to get these six boys to engage in sexual behaviour for the purposes of your sexual gratification. The sexual activity varied in seriousness but included penetrative activity. The offending against WN was particularly serious. You were prepared to give one boy alcohol and to take advantage of another while he was in the sick bay. You grossly betrayed the trust of these children and their parents. Your behaviour was disgraceful, repeated, predatory, often planned and extremely serious both in what you did and the context in which you did it. Your moral culpability is very high.
58 What you did caused varying degrees of harm to the boys then and to them later as men. Victim impact statements were received from YN (Exhibit C), TT (Exhibit D), HN (Exhibit E) and WN (Exhibit F). In taking into account the contents of these victim impact statements I have put aside any inadmissible matters. The victim impact statements contain powerful expressions of the terrible harm that child abuse such as this causes. The descriptions of the way in which the boys felt at the time and the trust they had in you, compared with their feelings about the matter as they grew into being men, is extremely moving and clear demonstration of the ongoing effects of the abuse of children especially when that abuse is perpetrated by a person they trusted and admired. The degree of harm still suffered by the victims varies, but all have been deeply and adversely affected by what you did. This sort of harm is exactly what Parliament hopes to be able to prevent by making this type of conduct a crime. I have no doubt that the other victims have suffered similar types of harm.
59 I consider that while you may now feel some remorse, at the time of your offending you were not in any way remorseful and at the time you were interviewed by police you were not remorseful. This is extremely difficult to understand, given the passage of time that has occurred and what ought to have been increased maturity and insight on your part. You have repeatedly attempted to minimise your behaviour, including in relation to the photographs you took of the boys, which were quite clearly of a sexualised nature. You are not being punished for making child pornography and I accept that you kept the photographs as part of your collection rather than for any more sinister purpose. General deterrence and community protection are very relevant sentencing principles in order to discourage others from possessing such material and I consider a sentence of imprisonment to be appropriate.
60 You are entitled to a significant discount for your pleas of guilty. Your pleas have saved the complainants and other witnesses from the trauma of having to give evidence at a committal or trial. You have accepted your legal responsibility. I accept that by the time you decided to plead guilty you were remorseful to a certain extent. I accept Mr Newton’s evidence that in discussions with him your insight has increased and with that you have become considerably more remorseful than you were at the time you spoke to police.
61 The delay between your arrest and sentence is not particularly significant and I consider that it has only a very minor mitigatory effect on sentence.
62 The delay between offending against the boys and being charged is of considerable significance in sentence. You had no prior criminal history. You have not re-offended in the time since this offending, apart from you continuing your possession of the photographs which was improper and unwise as well as illegal but does not evidence any further offending against young people during the period since the offending against the school boys. You have gone on to have a very successful career and to make a strong contribution to the arts in Australia and overseas. Your rehabilitation cannot be said to be entirely complete given Mr Newton’s evidence but it is clear that significant rehabilitation has already taken place. I accept that there is a relatively low risk of you offending again. I accept that specific deterrence need not be given weight in sentencing you.
63 The delay means that you have now reached an advanced age with associated physical health issues and a crushing sentence ought be avoided. I accept that there should be some moderation of sentence to reflect the likelihood that you will suffer extra difficulties in gaol because of your mental health issues. I have also taken into account in mitigation that you will serve your sentence in protective custody.
64 I have taken into account in mitigation of sentence that you have suffered a degree of punishment by way of loss of reputation and earning capacity.
65 You must now pay the price for crimes you committed many years ago. Despite the matters in mitigation your offending is so serious that the only appropriate sentence is a sentence of imprisonment with a non-parole period. Denunciation, just punishment and general deterrence remain as powerful sentencing considerations because of the need to protect children against those who seek to exploit them for purposes of sexual gratification. The type of sentence contended for by your counsel would not properly reflect those sentencing considerations. I should add that due to the increase in maximum penalties a significantly higher sentence would be imposed if these offences were committed today.
66 You will be sentenced as a serious sexual offender in respect to Charge 3 and the following charges. I do not intend to impose a disproportionate sentence for the purpose of community protection. That must be the principal purpose for the sentence on those matters because of the relevant provisions, but in view of the low risk of re-offending community protection can be sufficiently achieved by the sentences I will impose. I am required to apply the relevant provisions as to cumulation but I have also taken into account the principles of totality and proportionality and the need to avoid a crushing sentence.
67 I have adjusted the levels of cumulation and concurrency to reflect the different nature, seriousness and timing of the offending as well as the different victims involved and the requirements of the serious sexual offender provisions.
68 I have taken into account the matters in mitigation, your prospects of rehabilitation and age in setting a shorter than otherwise non-parole period.
69 Charge 1, of indecent assault, you are convicted and sentenced to 30 months' imprisonment
70 Charge 2, of indecent assault, you are convicted and sentenced to 30 months' imprisonment.
71 Charge 3, of indecent assault, you are convicted and sentenced to 30 months' imprisonment.
72 Charge 4, of indecent assault, you are convicted and sentenced to 30 months' imprisonment.
73 Charge 5, of indecent assault, you are convicted and sentenced to 30 months' imprisonment.
74 Charge 6, of indecent assault, you are convicted and sentenced to six months' imprisonment.
75 Charge 7, of indecent assault, you are convicted and sentenced to four months' imprisonment.
76 Charge 8, of gross indecency, you are convicted and sentenced to three months' imprisonment.
77 Charge 9, of sexual penetration of a child between ten and 16, you are convicted and sentenced to 42 months' imprisonment.
78 Charge 10, of gross indecency, you are convicted and sentenced to five months' imprisonment.
79 Charge 11, of indecent assault, you are convicted and sentenced to four months' imprisonment.
80 Charge 12, of gross indecency, you are convicted and sentenced to ten months' imprisonment.
81 Charge 13, possession of child pornography, you are convicted and sentenced to three months' imprisonment.
82 You are sentenced on Charges 3 to 13 as a serious sexual offender and that will be entered into the records of the court.
83
The sentence on Charge 9 is the base sentence. Five months of each of the sentences on Charges 1 and 2, eight months of each of the sentences on Charges 3, 4 and 5, three months of the sentence on Charge 6, two months of each of the sentences on Charges 7 and 10, one month of each of the sentences on Charges 8, 11 and 13 and four months of the sentence on Charge 12 are to be served cumulatively on each other and on the sentence on Charge 9. The total effective sentence is a term of imprisonment of
90 months or seven years and six months.
84 I fix 57 months or four years and nine months as the period you are required to serve before being eligible for parole.
85
I declare that you have served 53 days of this sentence by way of
pre-sentence detention.
86 For the purposes of s6E of the Sentencing Act 1991, I confirm that in respect of Charges 3 to 13 the portion of the sentence which is not to be served cumulatively is to be served concurrently with the sentence on Charge 9.
87 You are required under the Sex Offender Registration Act to comply with the reporting conditions of that legislation for the period of your life because you have pleaded guilty to three or more Class 2 offences. Shortly my associate will come with Mr Brand to ask you to sign a document saying that you have received documentation in respect of those obligations.
88 But for your plea of guilty, I would have sentenced you to a term of imprisonment of ten years and six months with a non-parole period of seven years and six months.
89 I make the order for the taking of a forensic sample from you. I make that order because of the seriousness of your offending and because the order was not opposed.
90 Mr Buckley, I am required to tell you that when the authorities come to take a sample from you, they will do that by way of a buccal swab, a saliva swab. I am sure that you will co-operate with them. If you do not co-operate with them, they are entitled to use reasonable force and to take a blood sample.
91
Mr Brand, would you mind going with Ms Christiansen and obtaining
Mr Buckley's signature to show receipt of that documentation.
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