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[2019] ZAWCHC 18
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S v Rohde (CC43/2017) [2019] ZAWCHC 18 (27 February 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
REPORTABLE
Case
No.:
CC43/2017
In
the matter between:
THE
STATE
and
MR JASON THOMAS
ROHDE
Accused
CORAM:
SALIE-HLOPHE, J
DATE
OF HEARING:
9 OCTOBER 2017
DELIVERED:
27 FEBRUARY 2019
COUNSEL
FOR THE STATE:
Advocate L Van Niekerk
COUNSEL
FOR ACCUSED:
Advocate G Van Der Spuy
ATTORNEYS
FOR ACCUSED:
A L Mostert & Company Inc.
JUDGMENT ON SENTENCE
DELIVERED ON 27 FEBRUARY 2019
SALIE-HLOPHE,
J:
[1]
Mr. Rohde, on the 8
th
of November 2018, this Court found you guilty of the murder of your
wife with the direct intention to kill her as well as defeating
the
ends of justice by staging her body and the crime scene so as to
appear that she had committed suicide and supplying false
information
to the police in order to mislead the investigation as to the true
method of her death and that you had murdered her.
[2]
Now is the time for me to meet out an appropriate sentence to you for
the crimes of which you had been convicted. The
determination
of a suitable sentence does not entail a mechanical process in which
predetermined sentences are imposed for specific
crimes. In
each case the sentencing court has to take into account all relevant
factors, afford the appropriate weight thereto
and strike a balance
between the various interests to consider. In determining a
sentence which is just and fair, I have
regard to the triad of
factors that have to be considered as set out in the case of
S
v Zinn
1969 (2) SA 537
(A)
.
The Court must therefore take into account your personal
circumstances as the accused and the person convicted of the crimes,
the nature of the crimes including the gravity and extent thereof and
the interests of the community. In determing such a
sentence
the Court must tinge the sentence with a measure of mercy and strive
to meet the objectives of punishment being retribution,
prevention,
deterrence and rehabilitation.
[3] The general rule as
held by the Appellate Division in
S v Rabie
1975 (4) SA 855
(AD)
at 862 G-H
is that:
“…
punishment
should fit the criminal as well as the crime, be fair to society and
be blended with a measure of mercy according to
the circumstances.”
[4]
In mitigation of sentence, your counsel led witnesses and had also
placed factors before me which I should take into account
in order to
impose a lesser sentence to you in respect of the crimes of which you
had been convicted other than that as prescribed
by the law.
Counsel for the State on the other hand led evidence and made
submissions which in his mind are aggravating and
warranting of the
imposition of a harsher punishment.
[5]
The legislature otherwise known as the lawmakers have recognized that
certain serious crimes must be met with a minimum sentence.
You
have been convicted of murder, falling under Part II of Schedule 2
and as a first offender of this type of crime, you should
be
sentenced by the Court to a minimum sentence of 15 years imprisonment
in terms of Section 51(2)(a) of the
Criminal Law Amendment Act 105 of
1997
commonly referred to as the minimum sentence legislation.
The Court do, however, have the discretion in terms of
Section 51(3)
to impose a sentence lesser than the prescribed minimum if it is
satisfied that
substantial
and compelling
circumstances exist which, viewed cumulatively, justify the
imposition of a lesser sentence. Whilst I am empowered to
deviate
from the imposition of the prescribed 15 years, I cannot do
so for flimsy reasons nor depart from same lightly. As set out
in
S v Malgas
2001
SACR 496
(SCA)
, I
need to be satisfied that the imposition of such a sentence would not
be disproportionate in the circumstances and I must likewise
be
satisfied that the factors warranting a lesser sentence is of such a
nature that it is substantial and compelling in its justification
to
depart from the prescribed sentence. In other words, the 15
year sentence is to be regarded as generally appropriate for
the
crime of murder of which you had been convicted and should not be
departed from without “
weighty”
justification for doing so. (See
S
v Fatyi
2001 (1) SACR 485
(SCA).
The
Court is also empowered to impose a sentence in excess of the
prescribed minimum if the circumstances and applicable factors
of the
case warrant same.
[6]
I had at the start of closing submissions ventilated with your
counsel and counsel for the state that an appropriate sentence
could
possibly in the circumstances warrant of this Court to exceed the
prescribed minimum sentence, taking into account the aggravating
features of the murder in respect of which you had been convicted.
Both counsel were given an opportunity to address me on
this aspect
and the matter stood down for a period so as to afford each an
opportunity to take adequate instructions and they had
each addressed
me on their submissions in that regard.
[7] I will now turn to
the triad factors, starting with your personal circumstances as had
been highlighted by your counsel and
through the witnesses which had
been called to testify in mitigation.
PERSONAL
CIRCUMSTANCES:
[8]
You are 50 years old and were 47 at the time of the commission of the
offences. Three daughters are born between yourself and
the deceased,
aged 20 (turning 21 in June) and twins who had recently celebrated
their 19
th
birthdays. The twins had matriculated in last year and are
attending their first year at university. Physical care and support
is provided by your parents with additional support (including
financial assistance) by the family of your late wife to the extent
as may be necessary for all three daughters.
[9]
Through your counsel and witnesses in mitigation the Court has heard
that you are the former CEO of Lew Geffen Sotheby’s”
International Realty and have been a successful businessman in the
realty world, you presently have a 25% shareholding in a realty
business which you also managed until your incarceration in November
2018 and which you co-own with your mother and two other
shareholders. You have been incarcerated for a period of just
over 3 months, whilst awaiting sentencing. You have no
previous
convictions and appear before this Court as a first offender.
[10]
Your two friends, Mr. David Livingston and Mr. Craig Fleisher as well
as your mother, Mrs. Brenda Rohde, testified that she
know you had a
happy and balanced childhood and they know you to be a good, kind and
caring person. They echoed each other’s
sentiments
through their testimonies that you contributed positively to society,
that they know you to be a good, caring and supportive
father to your
three daughters and that similarly you are kind and helpful to your
family and friends alike. They do not
know you to be disloyal,
to have an aggressive nature, they had never seen you display
physical violence however they did they
know that you had an
extra-marital affair during the last 11 months of your marriage.
[11] Dr. Stoloff, a
registered specialist psychiatrist, testified in mitigation that you
had been under his care post the death
of your wife, more
specifically from September 2016. He testified in December 2018
that during his last assessment of yourself
at Pollsmoore Prison, you
did not present symptoms of severe depression at the time. He
testified that from your history
and his personal clinical
observations, you are an ambitious and successful person, modest
about your achievements, kind, even-tempered
and that you do not
display characteristics of being controlling or present violent
behaviour.
[12] So much about your
personal circumstances. I turn now to the second factor to be
considered, that being the crimes of
which you had been convicted,
the manner of execution thereof as well as the nature, seriousness
and impact thereof.
THE
OFFENCES:
[13]
The victim of these offences was none other than your wife with whom
you had been married for 22 years. The murder of
your wife was
callous, brutal and shocking. Susan died a painful and gruesome
death. She did not die instantly, it took her
a while to die.
She suffered in the last moments of her life eventually succumbing to
her death. The degree of violence
which you meted out at your
wife was egregious, excessive and exhibits horrifying aggression.
You executed successive blows
and fatal force in the taking of her
life and completely disregarded her bodily integrity. It is a
significant feature of
this crime that you did not hesitate in the
commission thereof, for you did not call for medical assistance,
instead you left her
to die and you waited for her to die. I
will deal with more of these aspects later.
[14]
The Court heard throughout this trial and sentencing proceedings
about the big loves in your life: from marrying your childhood
sweetheart, to the relationship with your mistress Jolene Alterskye
then to the platonic love for your daughters, your parents
and
sister, the realty business in which you had been so successful, your
friends, the care for your domestic employee, the community
and
sport. Yet, during the commission of these crimes, one big love
story trumped all others. That is the story of
malignant
self-love. The love for yourself. In the course of
murdering your wife and setting the scene that she
had taken her own
life, no other interests, desires and care mattered than that of your
own. You did not just take her life, you
completely disregarded the
sanctity thereof and what her life meant to herself and to those who
loved her and whom she loved, most
of all your own daughters. Susan
would have looked to you as her husband and the father of her
children for protection and security.
Her guard and defences
would have been down being in the sanctity of your private space and
in the comfort of her husband.
[15]
You did not testify in mitigation of sentence and did not display
remorse for the murder of your wife. Had you done so
it would
have been taken into account as a mitigating factor. That you
elected not to do so, will however not be viewed as
an aggravating
factor.
[16]
Your counsel invited me to consider the personal circumstances as had
been led during the trial in addition to that which was
presented
during proceedings in mitigation of sentence. Accordingly, I
revisited your testimony during the trial. At
the conclusion of
your evidence in chief on 30 May 2018 (almost 2 years to the death of
your wife), you elected to make a statement
to this Court. In
response I asked you the following question: “
What
does the absence of Susan mean to you?”
(See record
page 2426 / line 12 until 2427 line 5) Your reply in answer was
essentially that you have not had the time to
grieve her death as you
are fighting for your life. This is illustrative in my view to
be contrary to the deep and caring
manner of which your witnesses in
mitigation of sentence testified to. The death of your wife, is
glaringly a loss to your
children, her family and friends, the
community circles in which she assisted with reading and maths
lessons for underprivileged
children, the Hearts of Hope orphanage
and voluntary counselling of crime victims to mention but a few.
It is further clear
from the evidence that Susan loved life, her
family, her friends and her community. She was passionate about
her hobbies,
running, gyming, her love for horses and contributing to
the underprivileged. Her death means that she is no longer able to do
these things and that she is missed for the roles she played in the
lives of others. Instead, to you, her death means that
you have
to fight for your life. This is by all accounts a very selfish and
self-serving manner of perceiving the death of your
wife.
[17]
The victim impact report prepared by Probation Officer, Mr. Rian
Perry, whom interviewed your daughters reported the absolute
loss
which they feel following their mother’s death. (See:
Exhibit MMMM, page 14) Your eldest daughter verbalised that
when she
wakes up in the morning she realises anew that her mother is not
there anymore, causing her to experience a sinking feeling
in her
stomach, followed by her feeling ill and empty. Her mother’s
death has affected every aspect of her life.
She longs for the
closeness of her mother and the emotional support her that she had
provided. She described her mother as
having been a source of
stability in her life, someone she would fall back on and someone who
did everything for them. Your
children lives in fear of their
future well-being, they suffer the conflict of mourning the death of
their mother and supporting
you as their father, which in turns
creates ongoing confusion and distrust. Whilst it is undeniably
a difficult position
for your children, the Court had also heard that
they are incredibly strong young women, that they are well loved and
cared for
and that their reasonable financial needs until they become
self-supporting would be met by the deceased estate of their mother
and the children’s maternal grandparents. Submissions had
not been made on your behalf as to what your financial contributions
would be to their future financial needs, however, it is common cause
that you hold a 25% shareholding in a realty business and
that
notwithstanding your incarceration you have an obligation to maintain
to your children until they become self-supporting.
[18] On the topic of your
financial position, I pause to add that your counsel also argued that
the life of luxury to which you
are accustomed to and your economic
wealth ought to be considered as a mitigating factor to impose a
lesser sentence. Imprisonment
he argued would be devastating to
the liberties and privileges which you are accustomed to. This
is a proposterous and a
non-sensical submission to which I cannot
disagree more. It is a constitutional and fundamental principle
of our law and
our democracy that we are all equal before the law.
The guiding principle that the punishment must fit the accused, the
crime
and the interests of the community, simply does not mean that
the privileged and wealthy sectors of our community ought to get
favourable sentences given their fortunate economic background.
A similar argument was made on behalf of tennis icon, known
as Bob
Hewitt. When the wheels of justice caught up with him, and he
stood to be sentenced for his crimes, much was made
by his counsel
that his standing as a tennis icon who successfully represented his
country internationally makes imprisonment of
such an individual
improper because his fall from grace (and the pain of the trial) was,
in itself, punishing. This submission
on behalf of Mr. Hewitt
was dismissed by the trial court as well as the appeal court in that
it overlooks the basic tenets of our
Constitution which enshrines
that we are all equal before the law. Similarly, your life of luxury
and wealth cannot be a factor
to be considered in determining
sentence of imprisonment (See Hewitt v S
2017 (1) SACR 309
SCA @ 315
par. 14).
INTERESTS
OF THE COMMUNITY:
[19] With regard to the
interests of society it is undeniable that we are experiencing high
levels of violent crime and in particular
with reference to this
case, violent crime against women. Dr. Naeemah Abrahams, Acting
Director of the Gender & Health
Research Unit of the South
African Medical Research Council, testified in aggravation of
sentence. She testified on national
and international studies
that she did as well as research on female murders and intimate
femicides. Intimate partner violence
is the most common form of
violence women experience in this country. Femicide, she
testified, is the killing of women and
in particular her studies
related to intimate femicide which is the killing of women by their
intimate partners being husbands
and boyfriends. Dr. Abrahams
set out in her report handed in as Exhibit LLLL and testified that a
study that looked at women
killed globally in 2013 revealed the
following statististics. The data from 66 countries found
globally that
39%
of homicides of women are committed by an
intimate partner. When comparing the global data of South
Africa, the proportion
of intimate homicides in our country stands at
57%
. We have become the femicide capital of the world.
This is clearly an epidemic and an enormous social problem.
According to a study set out in an article titled: “
Female
homicidal strangulation in urban South Africa”
, by authors
Suffia, Van Niekerk and Arendse, state at the conclusion of their
article:
“
The
prevention of female homicidal strangulation in South Africa will
ultimately be strengthened by the creation of a social milieu
that
promotes equity, safety, health, human rights and justice.”
[20]
It is thus important and the duty of the Courts to contribute in our
role as the justice system to impose appropriate sentences,
particularly where women are murdered in the context of their
marriages, their relationships and homes. Whilst it is so that
you, as the accused, cannot be sacrificed at the alter of deterrence
for other would-be offenders, nor can it impose punishment
in anger,
the interests of the community must be satisfied that offenders of
serious crimes such as these be punished accordingly.
If
offenders are punished too lightly for serious offences, society
would lose confidence in our Courts and so too would law and
order be
undermined. Serious crimes of this nature therefore compel that
the objectives of retribution and deterrence weigh
more than the
objectives of rehabilitation of the offender and accordingly the
interests of the accused would recede to the background.
[21] In the matter of
S
v Van Staden (KS21/2016)[2017] ZANCHC 21
the Court states
at paragraph 14 thereof, the sentiments expressed therein equally to
the facts of this matter:
“
[14]
Murder committed by a man on a woman should not be treated lightly.
It becomes worse where the perpetrator, as in this
instance, was the
deceased’s partner, who had the duty and the responsibility to
protect her and not to harm her. It
is killings like the one
committed by the accused which necessitate the imposition of sentence
to serve not only as a deterrent
but also to have a retributive
effect. Violence against women is rife and the community
expects the Courts to protect women
against the commission of such
crimes.”
[22] In conclusion of
this factor of the triad, it is pertinent to note that it is 20 years
or more since the Supreme Court of Appeal
so articulately stated in
S
v Chapman
[1997] ZASCA 45
;
1997 (3) SA 341
SCA at 345 A-B that
:
“
Women
in this country have a legitimate claim to walk peacefully on the
streets, to enjoy their shopping and their entertainment,
to go and
come from work and to enjoy the peace and tranquillity of their homes
without the fear, the apprehension and the insecurity
which
constantly diminishes their quality and enjoyment of their lives.”
AGGRAVATING
FEATURES
:
[23]
The aggravating features of the murder of your wife are significant
and startling. I will set them out briefly as follows:
[24]
You murdered Susan with the direct intention to kill her. She
looked to you for protection and would have trusted you
to care and
protect her, instead you breached this trust, attacked and murdered
her in your private space. Your counsel argued
on your behalf
that the murder was not for financial gain but was a crime of passion
which ought to be viewed as mitigatory.
Susan he argued pursued
your infidelity with proactiveness and with interrogation. The
suggestion is that your wife ought
to have been more subservient and
accepting of your infidelity and ought to have restrained her
objections and interrogations.
That she did not do this,
resulted in the perfect storm of your quarrel and that it was in the
exigencies of these events that
the offences happened. She got
killed, and you ought to therefor get a lesser sentence. I
cannot disagree more. This
is a patriarchal and antiquated viewpoint,
which undermines a woman and in the context of intimate femicide a
wife’s or girlfriend’s
right to dignity and equality
before the law. Intimate femicide clearly cannot be viewed as being
conduct which is less morally
reprehensible. You were her husband,
the father of her children and you were required to protect her,
rather than to inflict harm
upon her.
[25]
The injuries which you inflicted on your wife were successive and
incremental until it was fatal. During this time and
in the
progress of killing her, you would have had time to reflect and
desist from your unlawful conduct. However, you carried
on
regardless. The extent of the force which you used was so
excessive that the injuries to her neck shows clear grab and
scratch
marks and bruises on the surface of her skin in that area with deep
haemorrhages in the underlying tissue layers caused
by your thumb on
the right side of her neck and the remaining fingers on the other
side of her neck.
[26]
Her ribcage had various fractures illustrating how you had applied
substantial force on her chest (most likely with your knee),
whilst
you manually strangled your wife and incapacitating her in the
process. So severe was this force that she suffered
a contusion
to her lung, resulting in internal bleeding, coughing blood and
ingesting it.
[27]
The pillow which you used to smother Susan with was done with
repeated action, illustrated by the seepage of blood from the
abrasion you caused on her left upper eyelid (by an earlier fist
punch) which had come off on to pillow twice as you pushed down
on
her face repeatedly. With your force pressing down on her face,
you deviated her nose to the right and caused her teeth
to cut into
the inside of her lower lip.
[28]
It is significant and disturbing a fact that throughout this ordeal
you did not call for medical assistance. When you
ultimately
did call for help you limited it to a handyman purely for the purpose
of furthering the commission of your offences.
At no stage do
you question, hesitate or become ambivalent about murdering your
wife. You forged ahead, unfettered nor restrained
by conscience
or reflection.
[29] These aggravating
features are so extreme and shocking that in my judgment it far
outweighs your personal circumstances and
other mitigatory factors to
such extent that it warrants a sentence in excess of the prescribed
period of 15 years. I will
deal with that further in
conclusion.
COUNT
2:
[30]
With reference to the conviction of defeating the ends of justice,
the features are indeed also aggravating and remarkable.
The
Court has heard that you are a business engineer of note in the
property and realty industry. Marketing and selling of
property
is your strength. Posing and pitching the sale of a concept is
the golden thread of the realty world. Showing property
for sale as
showhouses is a skill which determines the success of a sale.
“
You get one
chance to make an impression and preparation is key”
,
is the rule as expressed by Rosie Mulvany who sells properties across
Ireland. The Sotheby’s Lew Geffen real estate
website
states the exact sentiments. Staging is a key element in
selling property.
[31]
Gleaning from the crime scene photos and other evidence, you used
your wife’s body as a showhouse to sell the concept
that she
had taken her own life. You methodically and clinically went
about in an attempt to create the indelible impression
that Susan had
done this to herself. Preparation was clearly key and you had one
chance to make the impression you wanted.
[32] I carefully searched
through the forensic images of the scene, her body naked and exposed
on the floor, with the indentation
mark which you inflicted around
her neck to create the impression that she hanged herself and I could
not find an acknowledgment
in the product of your great efforts that
she was your wife, the mother of your children, a woman or even
simply a human being.
[33]
So keen was the desire to ensure your liberty and to escape the
consequences of your murderous conduct, that she was nothing
but an
object used in the course to market and sell the concept you wanted
others to buy in to, that being, that Susan is to blame,
she did this
to herself. Naked and stripped of her dignity you dragged her
from the bedroom, over the sisal rug, inflicting
therewith more
injuries to her body and undignifiedly dragged her through her
faeces, leaving faecal drag marks on the floor in
front of the
bathroom.
[34]
You posed her for your alibi to see and to be shocked by her
nakedness. In that way, it is clear, you ensured that the
handyman you called would follow your instructions, aghast by the
scene and the nakedness of this woman and exit the bathroom without
further ado or inspection, maximising the prospects that he would buy
into the suicide image you had sought to create. So
did Mr.
William Lee, a fellow hotel guest, who shortly thereafter arrived and
stood at the bathroom door. Once he saw that
Susan was naked
and exposed he casted his gaze away out of respect and refrained from
looking into the scene any further.
This was exactly your
staging plan, for others to be left with an image of a woman who
killed herself. Through the act of
staging, you were marketing
and selling the suicide brand you had prepared for and quite frankly
grotesquely went beyond the pale.
[35] The death and loss
of such a remarkable person, a mother, a daughter, a sister and
friend is in itself a traumatic and grieving
experience. By
blaming her for her demise in circumstances where you had murdered
her added insult to injury. You sought
to tarnish her legacy
and by simulating her death as suicide, you left her loved ones to
further suffer in their grief and speculate
with anguish as to what
motivated Susan in the taking of her own life, how it could be that
she did not consider her love for her
children and other loved ones
and in turn their love for her, when she chose to end her life and
naturally they would torment in
the quest as to how and if they had
failed her. You showcased her regardless of the
obligation you owed her to protect
her body, her dignity and her
legacy and committed this offence in cruel and selfish pursuit to
escape the letter of the law and
defeat the ends of justice.
CONCLUSION
:
[36]
In conclusion, I have considered various sentencing options.
For the reasons set out above, I am satisfied that a sentence
of long
term direct imprisonment is called for in these circumstances and
that the punishment meted out to you should exceed the
minimum
prescribed sentence of 15 years which will meet all the objectives of
sentencing and will be manifestly fair and just.
[37]
Accordingly, on
Count
1
you are sentenced
to
18 years
direct imprisonment
.
Turning to
Count
2
, which is also a
serious crime, you are sentenced to
5
years direct imprisonment
.
[38]
It is ordered that in terms of Section 280 of the Criminal Procedure
Act, that 3 years of the sentence imposed on count 2 shall
run
concurrently with that imposed on count 1.
[39]
Mr. Rohde, you are herewith sentenced effectively to a term of
20
years direct imprisonment
.
[40] You are further
declared to be unfit to possess a firearm.
________________
SALIE-HLOPHE,
J