DISTRICT COURT
CRIMINAL JURISDICTION
JUDGE BOTTING
Ex officio indictment
THE QUEEN
v.
ANTHONY KIM BUCHANAN ..
BRISBANE
DATE 26/04/2002
SENTENCE
HIS HONOUR: Anthony Kim Buchanan, you have pleaded guilty before me today to more than 30 offences involving the indecent treatment in various ways of young children who were in many respects in your care. Those offences appear to have commenced in 1980 and continued as late as the year 2000. During that time you were employed either as a teacher or as a personal development staff member at private schools of good fame and reputation in this area.
So far as the offences are concerned, they have been described to me in a convenient format in the schedule which has been tendered, and the learned Crown Prosecutor has touched briefly upon them.
I do not intend to dwell upon them. It can be said of them that they demonstrated on your part degrading and humiliating conduct towards the children who were the complainants. I think there is force in your counsel’s submission that with perhaps the exception of count 19 and 33 the offences involved largely exhibitionism and masochism by yourself.
In fairness I think if has to be said that the conduct described is in many respects not as horrendous as some of the descriptions that are commonly given in these types of cases, but having said that, of course, I repeat that they can only be regarded as most serious offences of a most degrading and humiliating kind.
The offences, of course, as I have just indicated, I regard as being very serious ones. What it seems to me compounds them very significantly in this case is the breach of trust that was involved with each of these offences. I think that is a very significant element to take into account on this occasion. That breach of trust is all the more exaggerated, it seems to me, if that is the right expression, by the fact that you were clearly not only a teacher of these children but you were one who was highly respected by the parents and by no doubt your colleagues at the schools at which you were employed.
Indeed, your role appears to be a greater one than merely a teacher. You were in some ways, it would seem, a counsellor to the student. Indeed, I think that was the capacity of your later employment, not only to the students but to their families and it was the trust implicit in such positions which was so terribly betrayed by you when you committed these offences. As I say, I do not intend to dwell on the offences. Their enormity speaks for itself.
The purposes of punishment are many, but it seems to me the most significant factors for me to take into account today are first the need to protect society. Secondly, the need to deter you from like offending in the future. Thirdly, the need to deter others who might be inclined or tempted to commit like offences in the future. Fourthly, I regard the denunciatory effect of sentencing, the need to state quite clearly and unequivocally society’s condemnation of this type of conduct.
As I say, they seem to me to be the most significant aspects of the punishment that I must impose to take into account, and I do not pretend to arrange them in any particular order, or that any particular significance should be placed on the order which I have mentioned them.
My usual course when sentencing and where a plea of guilty has been entered and particularly where an early plea has been entered is to recognise the early plea by a discount, if that is the right expression, because I think there are strong reasons why such pleas should be encouraged by our community.
The benefits of the saving to the community of the cost and time that trials involve is obvious. The more significant benefit, so far as I am concerned, and it is particularly pertinent in situations like these is that when an early intimation is given that a plea of guilty will be entered, the victims can then get on with their lives knowing that they will not have to relive their experiences by relating them to a group of strangers, and I think that is very important aspect.
As I say, usually it is my practice to reflect an early plea by reducing the head sentence and I then go on to consider other factors which may be pertinent to the question of what factors should be taken into account by way of mitigation. In this case, as I have already indicated, I intend to make a recommendation. It seems to me that one of the safeguards that society will have if that recommendation is acted upon will be that you will be subject to the supervision of the parole authorities. It seems to me to be desirable that that should be for as long a period as may lawfully be permitted. That is the reason why I do not propose to reflect your plea of guilty by a reduction in the head sentence. It should be given significant effect so far as the recommendation that I intend to make is concerned.
Your counsel has eloquently stated on your behalf, I think, all that can possibly be said by way of mitigation, and indeed there is much force in most of the submissions he has made to me.
I have already touched on the one factor which I regard as being very significant. That is your early plea. I have touched upon the benefits to society and, more importantly, the benefits to the victims which flow from that. It is true to observe you have been cooperative with the authorities from very shortly after these matters came to light.
An early plea is not always indicative of remorse. Often it simply reflects the strength of the Crown case. In your case, however, I am entirely satisfied that you have demonstrated remorse in a very significant way. I am satisfied that you have genuine remorse for what you have done.
It is not unusual for those who are before this Court to feel remorseful, but often one thinks that is more related to remorse about their own position rather than in respect of the position of their victims. Whilst no doubt you do feel considerable anguish about your own position, I am entirely satisfied that you have demonstrated genuine remorse so far as your victims are concerned. You appear to me to have compassion for and an understanding of their position.
You have taken steps by way of monetary compensation and by your apologies to in some way demonstrate that remorse and in some way address the harm you have done to your victims.
It seems to me you also have demonstrated some remorse for the damage which your actions must inevitably occasion to the schools at which you worked for many years.
I am satisfied that you have demonstrated a determination now to address the serious problems which you have. I am indebted to Dr Lynagh for his helpful and insightful report upon you and upon the problems which you have had and that you will face.
I should say that I take into account but not do not give particularly great weight to the fact that your own childhood experiences were in many ways somewhat frightening. They may well explain how it is you came to commit these offences, but it seems to me that for a man of your age and your obvious intelligence, it cannot be the case that they should be a significant mitigating factor.
I think it is also clear that you have retained the support of many in the community who are known to you and who, it is quite clear, in the past you have helped in significant ways. The references that have been put before me are eloquent about the compassion you have shown in the past and the understanding that you have shown to others in various unhappy circumstances. Those references come from students, from the families of students and from your former colleagues.
It seems to me that a common theme of those references are the writers expressing their dismay at learning of what you have done, to acknowledge what you have done for the evil that it was, but nonetheless to express support for you. It seems to me that it is to your credit that they should be able to feel that way. It is clear, as your counsel has said, that your teaching days are over. It is one of the tragedies of this case that it would seem to me that future students necessarily have to lose the talents of a very gifted teacher.
I take into account you are experiencing some health problems which may perhaps become more significant in the future.
In imposing the sentences I do upon you, as I have said, it seems to me we are dealing with essentially two courses of conduct separated by a number of years.
It is important to bear in mind, I think, that the public, the community has become increasingly aware of the types of problems caused by child abuse, child sexual abuse, and that concern in the community has been reflected over the years by Parliament as it has increased the penalties that apply.
Of course I am constrained by those penalties which existed at the time the offences were committed. It is for that reason it seems to me that the most appropriate course is to do as I indicated at the outset of these observations. That is, to impose a sentence of three years in respect of the earlier offences, five years in respect to the later offences.
Because it seems to me one can fairly look at the situation and see two separate courses of conduct, as I say, separated by some years, it seems to me appropriate, and indeed it seems to me that the enormity of your conduct calls for those sentences to be cumulative, whilst, as I have said, being concurrent within the temporal areas in which they were committed.
The orders I make therefore are these: on counts 1 to 19 I order that you be sentenced to three years’ imprisonment. Those sentences to be concurrent one with the other. On count 20 and the following counts, I order that you be imprisoned for five years, those sentences to be concurrent one with the other, but cumulative upon the earlier sentences.
I recommend that you be considered for post-prison community based release orders after 24 months from today. It will, of course, be a matter for the authorities at that time to consider whether it is safe for the community for you to re-enter it as a citizen.
The Crown have asked that I give consideration to the provisions of section 19 of the 1945 Act. That Act requires that I must be satisfied, if I am to make such an order, that there is a substantial risk that you will, upon your release, commit further offences of a sexual nature upon or in relation to a child under the age of 16.
I take into account the history that has been given to me of your offending in the past. I take into account the various steps you have taken, and which I have touched upon briefly since those matters were discovered to address your problems.
I place particular significance upon Dr Lynagh’s report. In saying that, of course, it is by no means clear that he guarantees success. He clearly does not. He acknowledges the difficulties that are faced by him and others of his profession who seek to help people such as yourself.
It seems to me that an order must be made upon a finding based that there is the substantial risk that is referred to. That finding, it seems to me, should be one made on the balance of probabilities.
Bearing in mind the consequences of making such an order it seems to me that whilst the balance of probabilities standard applies, I would nonetheless require proof of a fairly substantial nature to satisfy me to the requisite standard.
I find I am not satisfied that the risk referred to in the section exists in this case and I do not propose to make the order. In taking that course I am somewhat reassured by my understanding that it would be most unlikely you would regain teacher registration in this State and, secondly, by the fact that I understand that there are provisions now of a general application which would minimise the opportunities that would be open to you in the future to offend in a like manner.
Having imposed a sentence of five years’ imprisonment in respect of the later offences, I am also called upon to consider whether I should exercise my discretion and declare that you are a serious violent offender.
It is perhaps apparent from the orders that I have made that I do not regard that as being an appropriate order to make in this case and I will not make such an order.
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