R v Wynyard
[2023] NZHC 123
•7 February 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-404-000313
[2023] NZHC 123
THE KING v
ROBERT HOWARD GLADWIN WYNYARD
Hearing: 7 February 2023 Appearances:
Jacob Barry and Isabelle Archibald for the Crown Justin Harder and Nicola Wright for the Defendant
Sentencing Notes:
7 February 2023
SENTENCING NOTES OF MOORE J
[Redacted version for publication]
R v WYNYARD [2023] NZHC 123 [7 February 2023]
Background
[1] Robert Wynyard, at the age of 74 you appear for sentence having pleaded guilty to 11 charges covering various forms of indecency committed against eight boys. For completeness there are nine charges of indecency between a man and a boy1 and two charges of indecent assault on a boy under 12.2 Furthermore, of those charges, four are representative meaning that the offending alleged was committed in a similar way on multiple occasions.
The offending
[2] I will first begin by describing the facts of your offending. These are set out in the summary of facts which your counsel, Mr Harder, advises you accept. The facts will obviously be familiar to you. But because sentencing is such a quintessentially public function which is required to be undertaken in open Court, it is important that I set these out.
[3] In April 2020, the Police opened an investigation codenamed “Operation Beverley”. It was an inquiry into historical sexual offending against children by former members of staff at Dilworth School (“Dilworth). You were employed as a teacher at Dilworth for six years between 1977 and 1983. In the last three years you were the Senior Housemaster of MacMurray House, one of several boarding houses which accommodated boys between Standard 4 and Form 7. Members of boarding houses were confined to the school grounds six days a week and had very limited contact with parents, guardians, and family. So that is the context.
[4] I now turn to the individual charges which I shall discuss in chronological order. I have anonymised the names of your victims because even if I was to use their initials, there is sufficient information in the following descriptions of what happened, as has been used in this Court in submissions, for others hearing or reading these comments to join the dots and thereby identifying them. The law automatically protects victims’ identities and so I shall simply refer to each alphabetically. In doing so I mean no disrespect to these eight brave men who have come forward to tell their
1 Crimes Act 1961, s 140(1)(a). Maximum penalty 7 years’ imprisonment.
2 Section 140(1)(a). Maximum penalty 10 years’ imprisonment.
stories. It is simply that the law requires me not to divulge any information which might lead to their identification. They are entitled to that privacy for obvious reasons.
Offending against A
[5] Your first offending was in 1980. It was against A. A was aged 12 to 13 years. He was a student in your class. At the time you were 32.
[6] You asked him to stay behind after class one day. But it was a subterfuge to get him alone with you. You told him it was to help you put things away. He stood on a desk or a step ladder to reach a higher shelf. You put your hand up underneath his shorts and fondled his penis and testicles.
Offending against B
[7] The second charge relates to B. It was laid as a representative charge although I note it relates to two separate and identifiable events.
[8] B was not in your form class. Twice in 1980 you summonsed him to your class room alone after school. B was 12 to 13 years old.
[9] On the first occasion, you rubbed your hands over B’s chest, back and torso for one to two minutes. You indicated to him that you wished to go further.
[10] On the second occasion, you rubbed your hands over B’s chest before moving down towards his groin. B rebuffed your advances. He pushed you away. But you persisted. This went on for five or so minutes, before he left the room.
Offending against C
[11] Your third victim was C. He was a boarder at MacMurray House between 1980 and 1981 when you were the Housemaster. C was nine to 10 years’ old. You were about 33 at the time.
[12] You approached C one night when he was asleep in bed. The summary does not state where, but I assume this was in a dormitory. You pulled the sheets down.
Using his nickname, you attempted to reassure him, telling him several times not to worry while you masturbated him. You only stopped when he rolled over.
Offending against D
[13]Your fourth victim was D. He, too, was a boarder in MacMurray House.
[14] In 1981, when he was 12 or 13 years’ old, D was in MacMurray House to perform telephone duties. He was alone in the telephone room when you entered.
[15] You wrapped your arms around him before reaching inside his shorts and underwear and touching his penis and genital area. This went on for about two to three seconds before D wriggled free and fled.
Offending against E
[16] Your fifth victim was E. You have pleaded guilty to four representative charges in respect of offending against him. E was a boarder in MacMurray House in 1982. He was 12 at the time.
[17] The summary records that on “most nights” that year, you approached E while he was asleep in bed and masturbated him. This also occurred in the nearby intercom room. The following year, you and E both left Dilworth. However, you continued your association with E and you continued to offend against him.
[18][REDACTED]
[19] About three times a week, late in the evening, you visited E [REDACTED]. You engaged in sexual activity. You masturbated each other and on occasions had oral sex. This continued until E was 15 years old. It was at that age that he told you he wanted to stop the sexual activity [REDACTED].
Offending against F
[20] The nineth charge relates to F. He was a boarder in MacMurray House during 1981. It is representative.
[21] Twice that year, you approached him while he was in bed. You stroked his penis. He estimates this was for five to 10 minutes each time. At the time F was aged 12.
Offending against G
[22]You committed the tenth offence against G. [REDACTED]
[23] Your offending is captured in a single representative charge. Between 2000 and 2002, G and his brothers often spent nights at your home. On four such occasions while G was asleep, you fondled his penis and testicles underneath his pyjama pants. These episodes lasted for between five and 20 minutes. G was eight or nine at the time.
Offending against H
[24]The final offending was committed against H, [REDACTED]
[25] On an evening between 2000 and 2002 when H was staying with you, he awoke to find your hand down the front of his pyjama pants, touching his genitalia.
[26] So, that is a very brief summary of the offending you have admitted through your pleas of guilty. I next turn to discuss what the effect of your offending has had on your victims.
Victim impact statements
[27] Put simply, your actions have had a profound and enduring impact on the victims to a greater or lesser extent. I will not trawl through the detail or attempt to capture the magnitude of the devastating effect of what you did. No one is better qualified to do that than those who have so courageously committed their feelings to paper some of which you heard read out a few minutes ago. The best I can do is identify some core themes which emerge from their statements. On any analysis, it is impossible to be anything other than moved by the confronting and harrowing accounts given by mature and middle aged men who, as pubescent and prepubescent boys and young teenagers, suffered at your hands.
[28] Most have been unable to fully or properly process what happened to them, let alone disclose to others, until recently. They have described trust issues with older men. They have experienced difficulties with intimacy. Some have found themselves quick to anger while others have turned to drugs and alcohol as coping mechanisms. Themes also include enduring battles with depression and anxiety; even suicidal ideation and attempts to take their own lives. They put these consequences down to what you did to them all those years ago. The personal toll is immeasurable and there can be little room for doubt that it was you who was responsible for this world of pain.
What is the appropriate starting point?
[29] I now turn to the first stage in the sentencing process, which is to set a starting point for the offending. The expression “starting point” is something of a misnomer in the sense that it tends to convey a minimum level of sentence which is then added to. In actual fact, for sentencing purposes, the starting point, once calculated, may be adjusted up or down to account for the circumstances.
Maximum penalties
[30] The maximum penalties for the charges against you are either seven or 10 years. I do not need to go into the reasons for that, but they are not entirely straight forward because since you committed these offences there have been changes in the law.
[31] But in summary, it is agreed that for charges 1, 2, 4, 5, 6, 7, 9, 10 and 11 carry a maximum penalty of seven years’ imprisonment. It seems agreed that the maximum penalty for charge 3 is 10 years but there is a dispute as to what the maximum penalty for charge 8 is. However, as have discussed with counsel in their oral submissions, for the purpose of this particular sentencing exercise, in respect of E, that is really a distinction without a difference.
Starting point for offending against E
[32] It is common ground that I should take the offending against E as the lead charges in setting the starting point and then uplift this to account for the other charges.
[33] There is no guideline judgment for indecency between a man and a boy. However, the case law identifies a number of aggravating features that commonly arise in sexual offending. A significant number apply to your offending, not only in relation to the offending against E but also to your offending viewed as a whole, and I list them:
(a)The scale and duration of offending: The offending spanned 20 years and involved eight victims. You offended with particular frequency against E both at Dilworth and later [REDACTED]
(b)Planning and premeditation: While I accept that some of your offending may be considered opportunistic, you also orchestrated situations to ensure that you would be alone with the victims. The offending against E was particularly planned and premeditated. You not only offended against him when he was in your care at Dilworth but you also offended against him [REDACTED] after he left Dilworth. That conduct is plainly indicative of a high degree of planning, cynicism and prior thought.
(c)Breach of trust: This, too, is a highly aggravating factor which not only applies to your conduct at Dilworth but, in respect of E, [REDACTED]. You were a figure of authority in the victims’ lives. As a teacher you were able to exploit that authority to your own advantage. You expected and received obedience. As Housemaster you were the leader of the boarding house. In that role you wielded particular authority. In many respects you were a parental substitute, standing in to give pastoral and other support those placed in your care, day and night for six days out of every week. [REDACTED]
There is also the breach of the trust you owed to the parents and caregivers of the boys you abused as well as the governors, administrators and conscientious and decent teachers at Dilworth, both present and past.
(d)Vulnerability of victims: This too is a seriously aggravating factor. It has two elements in my view. The first is that all your victims were adolescent boys placed in your care by others who trusted you to look after them. You were some 20 or so years their senior, so there was a huge age discrepancy and as I have already mentioned, a figure of authority. To that extent this factor overlaps with the previous. However, there is a second feature under this heading. It was touched on in at least one of the victim impact statements and has been referred to by Judges sentencing other defendants identified and charged as a result of Operation Beverley. It is this. Almost by definition, boys accepted into Dilworth came from disadvantaged backgrounds. The school has a long and proud charitable history of accepting boys who may have been orphaned or who came from struggling solo parent homes often because the primary income earning parent had died. Parents and care givers whose children were accepted into Dilworth thought they had struck the jackpot. As Toogood J so eloquently observed when sentencing Mr Browne: 3
“...To the extent Dilworth was intended to provide some kind of sanctuary for boys experiencing difficulties at home, your behaviour operated to achieve precisely the opposite ..”.
Those words equally apply to you, Mr Wynyard.
(e)Harm to the victims: Your actions have inflicted life-long trauma on the victims.
[34] Counsel have referred me to a number of cases which, in their submission, assist in setting the starting point.4 Among the most helpful are those that relate to other defendants in Operation Beverley who have already been sentenced.5
3 R v Browne [2021] NZHC 3286 at [36](e).
4 R v Morris [2020] NZHC 1662; R v Moloney [2009] NZCA 9; R v Hearling [2009] NZCA 298; D (CA368/2017) v R [2017] NZCA 464; and S v Police HC Auckland CRI-2008-404-41, 23 May 2008.
5 R v Wilson [2021] NZDC 5366; R v Browne, above n 3; R v Harlow [2022] NZDC 12421 and R v Cave [2022] NZHC 1999.
[35] I agree with Mr Barry, for the Crown, that your offending against E bears the greatest similarity to Mr Wilson’s offending against complainant A. That offending involved oral sex on a weekly basis over a “lengthy period of time”.6 Judge Collins determined that a starting point of at least four years’ imprisonment would have been appropriate on a standalone basis.7
[36] While the nature of Mr Wilson’s offending was more serious, your offending was more frequent and prolonged. You took advantage of E not only while he was a boarder at Dilworth, [REDACTED] and that is a gross and enduring breach of trust.
[37] I consider a starting point of five years’ imprisonment to be appropriate for your offending against E.
Uplift for remaining offending
[38] I now turn to assess the balance of the offending. This comprises indecencies against seven victims, some on multiple occasions.
[39] In terms of scale, I assess your offending as less serious than in Browne, where an uplift of six years’ imprisonment was applied to reflect indecencies against an additional 13 victims.8 However, I consider your conduct as more serious than in Wilson, where an uplift of three years’ imprisonment was applied for offending against four additional victims.9
[40] In terms of the nature of the offending, counsel have referred me to R v Moloney.10 This involved a member of the church offending against five young boys on six occasions. A starting point of four years’ imprisonment was upheld on appeal.
[41] Having surveyed the case law, I consider an uplift of five-and-a-half years’ imprisonment to appropriately reflect the remaining offending.
6 R v Wilson, above n 5, at [7].
7 At [16].
8 R v Browne, above n 3.
9 R v Wilson, above n 5.
10 R v Moloney, above n 4.
Conclusion on starting point
[42] It follows that the global starting point for your offending is 10 years and six months’ imprisonment.
[43] The Crown accepts that an adjustment for totality is appropriate. I propose to reduce the global starting point to nine years’ imprisonment on a totality basis.
Adjustments to the starting point for personal circumstances
[44] I now turn to consider what adjustments need to be made to the starting point to account for your personal circumstances.
Guilty pleas
[45]The first is your guilty pleas.
[46] Your trial was scheduled to commence on 26 April 2022. You entered guilty pleas to amended charges on 13 April 2022; around a fortnight before.
[47] Counsel suggest that a discount of 20 per cent strikes the appropriate balance between recognising the lateness of the pleas and the savings associated with not having to proceed to trial. While that level of discount might well be considered generous given its relative lateness, the avoidance of a necessarily lengthy trial and of eight men being brought to Court and asked to relive the horrors of their experiences are savings worthy of substantial credit.
[48]I accept that a 20 per cent discount is appropriate.
Remorse and reparation
[49] The next mitigating factor advanced by Mr Harder on your behalf is remorse and reparation. You have prepared an affidavit in which you accept responsibility for all your offending, despite there being some minor factual differences and one incident you do not recall. You apologise to the victims, their wider families and friends, as well as your own.
[50] Mr Harder submits that these expressions of remorse, together with your offer and willingness to attend restorative justice, could warrant a discrete discount of between five and 10 per cent.
[51] You have also made a reparation payment of $10,000 to each victim. You say you do not wish any of the victims to think that you have tried to monetise the harm done. Rather, you wanted to do something tangible to acknowledge your wrongdoing before entering a guilty plea.
[52] In R v Johnson, the Court of Appeal held that a discount of five per cent or more could have been appropriate in respect of a $10,000 reparation payment.11 Your counsel submitted that the significantly higher sum in the present case ($80,000 in total) could warrant a discrete discount between five and 10 per cent. The victims have been consulted. The clear majority are sceptical of your motives. Several have commented that it is no compensation for what they suffered. Some are equivocal about whether they will accept it. Certainly, a recurring theme is that they do not believe the payment expiates or mitigates the wrong. However, in fairness to you Mr Wynyard, neither do you. Your affidavit makes that clear. While I take into account the victims’ views over the reparation payment, some recognition of your expressions of remorse and willingness to make amends is appropriate.
[53] Taking these factors together, Mr Harder submits that a combined discount of 15 per cent for remorse and reparation would be appropriate.
[54] There is a suggestion in the pre-sentence report that you may not be fully remorseful because you did not accept some aspects of the summary of facts after it was read to you by the probation officer. I accept your explanation in your affidavit. It was read to you quickly and there were minor details which did not go to your offending which you didn’t think were quite right, such as whether a particular boy was in your form class in a particular year. Those differences are inconsequential and do not indicate an absence of acceptance or remorse. In fact, you say you have insight into the depths of despair some of your victims have and continue to suffer because you, yourself, are a victim of sexual abuse. I shall return to that topic very shortly, but
11 R v Johnson [2010] NZCA 168.
on that point there is a counterfactual. As a victim of abuse, you also must have known the levels of harm you were inflicting on others.
[55] Having said that, I am satisfied on the material before me you have a clear insight into the consequences your actions have had on these eight men and you are genuinely remorseful.
[56]I shall apply a combined discount of 10 per cent under this head.
[57] You have evidently begun what will inevitably be a long process of self- reflection.
Personal background
[58] The final mitigating factor advanced by Mr Harder relates to your personal background.
[59] As I have just mentioned, you say that you were abused as a young boy by a worker at the farm where you lived. Your daughter has provided an affidavit in which she confirms that you disclosed the abuse to her in 1997.
[60] The nature of the abuse which you suffered, was of a broadly similar nature to much of the abuse that you inflicted. Mr Harder submits there is a plainly a link, justifying a discrete discount of 10 per cent.
[61] I acknowledge that the abused often become the abusers. That is the sad truth. However, the extent and scale of your offending makes recognition of this factor difficult to accept. It takes it out of the realm where a discrete discount for this factor is available. You were an adult exercising a parental and leadership function to adolescent boys placed in your care by those who, not unreasonably, reposed the utmost trust in you and you breached that trust.
Conclusion on personal mitigating factors
[62] It follows that I have identified discounts totalling 30 per cent from the starting point of nine years’ imprisonment.
[63] This leads to an end sentence of six years and three months’ imprisonment and that is the sentence I shall impose on you.
End sentence
[64]Mr Wynyard, please stand.
(a)On charge 8 (oral sex with E) you are sentenced to three years’ imprisonment.
(b)On each of charges 5, 6, and 7 (the other charges relating to E) you are sentenced to one years’ imprisonment. Those sentences will run concurrently with each other but cumulative on the sentence imposed on charge 8 meaning that in respect of E you are sentenced to a total of four years’ imprisonment.
(c)On all the other charges you are sentenced to two years and 3 months’ imprisonment, which terms are concurrent with each other but cumulative on the four years’ imprisonment in respect of E, making a total combined final sentence of six years and three months’ imprisonment.
[65] All these charges are qualifying offences under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016. Because you have been sentenced to a term of imprisonment you must be registered on the Child Sex Offender Register. The Registrar of this Court will give you written notice of your reporting obligations under the Act and the penalties for failing to comply with them.
[66]Stand down.
Moore J
Barristers/Solicitors: Crown Solicitor, Auckland Mr Harder, Auckland
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