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[2016] ZASCA 100
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Hewitt v S (637/2015) [2016] ZASCA 100; 2017 (1) SACR 309 (SCA) (9 June 2016)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No.: 637/2015
In
the matter between:
ROBERT
ANTHONY JOHN HEWITT
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation
:
Hewitt v The State
(637/2015)
[2016] ZASCA 100
(9 June 2016)
Coram:
Maya DP, Tshiqi and Seriti JJA
Heard:
3 May 2016
Delivered:
9 June 2016
Summary:
Sentence – appeal against
imposition of effective sentence of six years’ imprisonment
upon 75 years old offender for
rape and indecent assault of young
girls
-
crimes
committed three decades ago –– appeal dismissed.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Bam J sitting as court of first
instance)
The
appeal is dismissed.
JUDGMENT
Maya
DP
(Tshiqi and Seriti JJA
concurring
):
[1]
This is an appeal against sentence with the leave of the Gauteng
Division of the High Court, Pretoria (Bam J). The appellant,
a
retired world renowned champion tennis player and instructor, was
convicted on two counts of rape of two girls aged about 12
and 13
years (the first and second complainants) and one count of indecent
assault of a 17 year old girl (the third complainant).
The rape
offences were committed in the early 1980s and the offence in
relation to count 3 in 1994. It would take the long arm
of the law
three decades to catch the appellant as he was only convicted in
March 2015 at the age of 75 years. He was sentenced
to undergo eight
years’ imprisonment in respect of each of the rape counts and
two years’ imprisonment for indecent
assault. The sentences
were ordered to run concurrently. Two years of each of the rape
sentences were suspended for a period of
two years on condition that
the appellant pays a collective sum of R100 000 to the
Department of Justice and Constitutional
Development to be utilised
to further the department’s campaign against the abuse of women
and children. He was therefore
sentenced to undergo an effective
period of six years’ imprisonment.
[2]
The manner in which the offences were committed is set out
comprehensively in the judgment of the court a quo and need not be
repeated in fine detail. Suffice it to say that the appellant took
his chances with the complainants, who were his tennis students,
mainly during coaching sessions. He would make lewd comments to the
children, peek under their skirts, rub his erect penis against
them,
fondle their breasts and stick his tongue in their mouths and expose
his naked body to them. He wrote love letters to the
second
complainant whom he also forced to perform oral sex on him and
proceeded to rape during a tennis tournament at the Sun City
Hotel in
Rustenburg. He raped the first complainant at the premises of a
tennis club house in Boksburg on an afternoon scheduled
for a tennis
lesson. Unfortunately when she reported the incident to her mother
with whom she had a bad relationship, the latter
dismissed it out of
hand and that was the end of the matter.
[3]
The second complainant’s ordeal was fortuitously discovered
shortly after the appellant raped her when she disclosed it
to her
sister, who promptly told their parents that the appellant had kissed
her and put his tongue in her mouth. The second complainant
then
revealed everything and a charge was consequently laid with the
police in Johannesburg. The matter was, however, aborted because
the
Attorney General took the view that the case fell outside his
jurisdiction as the alleged offence was committed in the former
Republic of Bophuthatswana. The lawyers engaged by the second
complainant’s father were also concerned that she would never
withstand cross-examination by the appellant’s lawyers if the
matter went on trial.
[4]
The third complainant’s suffering ended after she endured the
molestation over a number of years. She finally confided
in her
mother after the appellant shockingly told her that ‘rape is
enjoyable in all cases’ and that if he raped her
she should
‘just lie down and enjoy it’. The whole truth tumbled out
and her father promptly reported the appellant
to the South African
Tennis Association. The appellant was then forced to resign from the
Eastern Transvaal Tennis Association.
But no charge was laid with the
police because the lawyer consulted by the third complainant’s
family advised that it would
be difficult to prove the offence in
court as there were no witnesses and it would rest solely on her
word. So it was that the
appellant evaded justice until 2015.
[5]
After the appellant’s conviction extensive evidence described
in minute detail in the court a quo’s judgment concerning
his
personal circumstances, especially his failing health and the
devastating effect of the trial on his family’s social
life,
was led. In addition to his advanced age, he is a first offender and
a family man married for 50 years. He has two adult
children and
several grandchildren. He endured a barrage of anonymous hate mail
and hostility from members of the public and the
media when he
attended the trial. He suffers various ailments including
osteoarthritis resulting from his many years of sporting
activity for
which he has had surgery; progressive coronary artery disease for
which he receives medication and treatment; peptic
ulcer disease and
dysfunctional colon for which he is on chronic medication. According
to his cardiologist (Dr J du Toit), he needs
‘to be watched
carefully’. And in the opinion of his gastroenterologist (Dr J
Garisch) he ‘requires access to
the required expertise in order
to have regular check-ups and adjustments made to his medication and
treatment [but] there have
been no compelling surgical issues to
date’. A synopsis of his physical health prepared by Dr R
Barnard was that ‘he
has numerous medical conditions that
currently contribute to the fragility of his age’ which ‘are
fairly well controlled,
as long as he regularly attends the
follow-ups booked’ with his doctors.
[6]
In a thorough and carefully reasoned judgment, the court a quo
lamented the lengthy delay before the matter was brought to justice,
which rendered sentencing even more difficult, and it painstakingly
weighed all the above factors and the various sentencing options.
The court then concluded that a non-custodial sentence would not
serve the interests of justice in the circumstances. But it relented
upon application for leave to appeal and took the view that the
unusual time lapse and the appellant’s age and health issues
could perhaps persuade another court otherwise.
[7]
The gravamen of the appellant’s submissions in argument before
us was that the sentences are startlingly inappropriate.
It was
contended that the court a quo overemphasized the seriousness of the
offences at the expense of the appellant’s personal
circumstances having regard to his advanced age and ill health and
that he ‘only vaginally penetrated the [rape] complainants
once’ and has not repeated the offences. But his counsel
grudgingly conceded that a non-custodial sentence (which was
initially
sought on the basis that the shame and stigma of a rape
conviction and being stripped of his sports honours was sufficient
punishment
for someone of the appellant’s stature as an
international sports star)
[1]
would
be inappropriate. He proposed a sentence of correctional supervision
under s 276(1)(
i
)
of the
Criminal Procedure Act 51 of 1977
.
[2]
[8]
It is a trite principle of our law that the imposition of sentence is
the prerogative of the trial court.
[3]
An
appellate court may not interfere with this discretion merely because
it would have imposed a different sentence. In other words,
it is not
enough to conclude that its own choice of penalty would have been
an
appropriate penalty. Something more is required; it must conclude
that its own choice of penalty is the appropriate penalty and
that
the penalty chosen by the trial court is not.
[4]
Thus,
the appellate court must be satisfied that the trial court committed
a misdirection of such a nature, degree and seriousness
that shows
that it did not exercise its sentencing discretion at all or
exercised it improperly or unreasonably when imposing it.
[5]
So,
interference is justified only where there exists a ‘striking’
or ‘startling’ or ‘disturbing’
disparity
between the trial court’s sentence and that which the appellate
court would have imposed. And in such instances
the trial court’s
discretion is regarded as having been unreasonably exercised.
[6]
[9]
It is against this backdrop that the question whether the court a quo
exercised its sentencing discretion improperly or unreasonably
in the
circumstances of this case must be determined. Our courts have, in
countless cases of this nature, consistently expressed
society’s
abhorrence of sexual offences, which once earned South Africa the
shameful title of being the rape capital of the
world,
[7]
and
the devastating effect they have on victims and society itself. The
courts have aptly described rape as ‘a horrifying
crime’
and ‘a cruel and selfish act in which the aggressor treats with
utter contempt the dignity and feelings of [the]
victim’
[8]
and
as ‘a very serious offence’ which is ‘a
humiliating, degrading and brutal invasion of the privacy, the
dignity
and the person of the victim’.
[9]
Rape
of a child, usually committed by those who believe they can get away
with it and often do, is far more horrendous. As was held
in
S
v Jansen
,
[10]
it
is an appalling and perverse abuse of male power which strikes a blow
at the very core of our claim to be a civilised society.
It is
unsurprising therefore that society demands the imposition of harsh
sentences which adequately reflect censure and retribution
upon those
who commit these monstrous offences and to deter would-be offenders.
[10]
Be that as it may, however, the sentence must fit the criminal as
well as the crime, be fair to society and be
blended with a measure
of mercy according to the circumstances.
[11]
This,
in my view, is precisely the approach adopted by the court a quo when
it determined sentence. As indicated above, the court
gave due
consideration to the appellant’s personal circumstances
particularly his advanced age, ill-health and the extraordinary
lapse
of time between the commission of the offences and the trial.
[11]
But as the court a quo rightly acknowledged, these mitigating factors
must be considered against other relevant
factors of the case.
Scrupulous care must be taken not to over-emphasise the appellant’s
personal circumstances without balancing
those considerations
properly against the very serious nature of the crimes committed; the
aggravating circumstances and the consequences
for the victims and
the interests of society.
[12]
There
are serious aggravating factors in this matter. The appellant,
ironically a father of a young girl himself at the material
time,
exploited the complainants’ innocence and youth and forced them
to submit to his wicked desires. He abused his position
of authority
and responsibility towards them and also abused the trust that their
parents had placed in him when they put their
young children in his
care. Quite apart from the immediate physical and psychological
trauma which the complainants suffered from
the offences, there is
also the lasting and devastating effect which the offences have had
on their lives and their families.
[12]
The first and second complainants, who are both divorcees, have
struggled to maintain intimate relationships with
men throughout
their adult lives as a direct result of the rapes. According to the
second complainant, her parents and sister never
recovered from the
incident and it has affected her children too as a result of the
manner in which she is raising them. The first
complainant has
suffered severe depression and anxiety and has led what she termed ‘a
self-destructive’ life. All three
complainants, who were
described as promising tennis players in the trial, abandoned their
potential tennis careers and told how
they cannot bring themselves to
even watch tennis to this day because of its link to the offences.
This uncontested evidence belies
the appellant’s contentions
that the complainants were not traumatised as the rapes were neither
‘brutal’ nor
‘callous’ because the second
complainant even ‘boasted’ about their kiss and that the
first complainant
suffered no injuries and had continued her training
session with him after she was raped.
[13]
Contrary to the appellant’s contention that the offences were
‘once-off’ and ‘there was
no pattern of sexual
abuse’, the evidence established a sustained period of grooming
of each complainant, which culminated
in the offences committed over
a period of 14 years. The fact that the second complainant laid a
criminal charge with the police
did not deter the appellant at all as
he proceeded to commit the rape in count 1 a year and a half later
and the offence in count
3 fourteen years thereafter.
[14]
Much was made of the appellant’s standing as a tennis icon who
successfully represented his country internationally
and the
impropriety of imprisoning such an individual because his fall from
grace (and the pain of the trial) was, in itself, sufficient
punishment as he had ‘already learned his lesson’. But
this submission overlooks the basic tenets of our Constitution
which
decrees equality before the law. Our law knows no class distinctions
of offenders of the proposed nature. The appellant’s
erstwhile
celebrated status does not therefore earn him a special sentence.
[15]
The appellant’s poor health is certainly a matter which must be
considered. And so is his advanced age. However,
as the court a quo
observed, he does not suffer from a terminal or incapacitating
illness as he leads an active life, which includes
personally and
successfully running a commercial citrus farm, and is even able to
drive his employees home daily. It was also not
disputed that the
medical treatment and care that he requires would be available in
prison.
[13]
Regarding his age, whilst courts have considered oldness as a
mitigating factor,
[14]
it is certainly not a bar to a sentence of imprisonment.
[15]
[16]
When the appellant was finally brought to trial he pleaded not guilty
and maintained his innocence even after his
conviction. The
complainants therefore had to testify in court and relive the trauma
of their ordeal in the intense glare of the
media and international
attention. During mitigation of sentence the appellant still showed
no remorse for his vile deeds. The
first complainant was referred to
as a ‘so-called rape victim’ and castigated severely for
‘thriving from the
case and abusing the press which conducted
its own parallel trial’ because she spoke publicly about the
effect that the rape
had on her life. Whilst lack of remorse is not
an aggravating circumstance, it would have redounded in the
appellant’s favour
if he had shown some appreciation of and
contrition for the devastation he caused.
[17]
It is indeed regrettable that it took so long to bring the appellant
to justice. But this is not an unusual phenomenon
in these types of
cases. And despite the obvious difficulties posed by the delays, our
courts have ably delivered just decisions.
[16]
I
am not satisfied that the sentences imposed by the court a quo are
not appropriate and that it exercised its sentencing discretion
improperly. In my view, the sentences fit the criminal and the
crime and fairly balance the competing interests. Although
the
element of rehabilitation bears little relevance here because of the
appellant’s age, the sentences would still serve
the other
important purposes of sentence, ie deterrence and retribution. This
court therefore has no right to interfere. The appeal
is accordingly
dismissed.
__________________________
M
M L MAYA
Deputy
President of the Supreme Court of Appeal
APPEARANCES
For
the Appellant:
Johann
Engelbrecht SC (with I. De Beer)
Instructed
by: A. W JAFFER ATTORNEYS, Pretoria West
For
the Respondent: Carina Coetzee (with S.
Barbaglia)
Instructed
by: Director of Public Prosecutions, Pretoria
Director
of Public Prosecutions, Bloemfontein
[1]
He
was further suspended from the American Tennis Hall of Fame and
became an outcast in the South African tennis community.
[2]
In
terms of which, subject to the provisions of that Act and any other
law and of the common law, a person convicted of an offence
may be
sentenced to imprisonment from which such a person may be placed
under correctional supervision in the discretion of the
Commissioner
of Correctional Services.
[3]
S
v Pieters
1987 (3) SA 717 (A) at 727F-H;
S
v Sadler
2000 (1) SACR 331
(SCA) at para 8;
S
v Swart
2000 (2) SACR 566
(SCA) para 21. See also,
S
v L
1998 (1) SACR 463
(SCA) at 468
f
;
S
v Blank
1995 (1) SACR 62
(A) at 65
h-i
.
[4]
Sadler,
para10.
[5]
S
v Pillay
1977 (4) SA 531
(A) at 535E-F.
[6]
S
v Snyders
1982 (2) SA 694
(A) at 697D;
S
v N
1988 (3) SA 450
(A) at465I-J;
S
v Shikunga
465I-466A;
S
v Shikunga & another
1997 (2) SACR 470
(NmS) at 486
c-f.
See
also
S
v M
1976 (3) SA 644
(A) at 649F-650A;
S
v Pieters
1987 (3) SA 717
(A) at 733E-G;
S
v Petkar
1988 (3) SA 571
(A) at 574D; 1997 (2) SACR 470 (NmSC) at 486
d.
See
also
S
v Abt
1975 (3) SA 214
(A);
S
v Birkenfield
2000 (1) SACR 325
(SCA) para 8;
S
v M
1976 (3) SA 644
(A) at 649F-650A;
S
v Pieters
fn
3 at 733E-G.
[7]
Interpol
named South Africa the ‘rape capital of the world’ in
2012. See D Richard Laws & William O’Donohue
(eds)
Treatment
of sex offenders: Strengths and weaknesses in assessment and
intervention
(2016) at 327. See also SABC ‘South Africa, world’s rape
capital: Interpol’
SABC
News website
,
19 April 2012 (accessed 7 June 2016).
[8]
N
v T
1994
(1) SA 862
(C) at 864G.
[9]
S
v Chapman
[1997] ZASCA 45
;
1997
(2) SACR 3
(SCA) at 5
b
.
[10]
S
v Jansen
1999
(2) SACR 368
(C) at 378
h
-379
a
.
[11]
See, for example,
Ex
parte Minister of Justice (In re R v Berger & another)
1936
AD 334
at 341 in the judgment of Beyers JA referring to
‘oordeelkundige genade en menslikheid’ (ie that a
penalty must be
accompanied by ‘judicious grace and
humanity’);
S
v Rabie
1975
(4) SA 855 (A).
[12]
S
v Salzwedel
& others
1999 (2) SACR 586
(SCA) paras 12 and 18;
S
v Combrink
2012
(1) SACR 93
(SCA) pars 22-24;
S
v Sinden
1995 (2) SACR 704
(A) at 708F-709B.
[13]
See in this regard,
S
v Zinn
1969 (2) SA 537
(A)
at
542B-C.
[14]
See,
for example,
S
v Heller
1971
(2) SA 29
(A) at 55D;
S
v Munyai & others
1993 (1) SACR 252
(A) at 255g-256
a
.
[15]
S
v
Zinn
fn 13;
S
v Barendse
2010
(2) SACR 616
(ECG) at 619
b
-620
b
.
[16]
For
example, in
Van
Zijl v Hoogenhout
2005
(2) SA 93
SCA.
S
v Cornick & another
2007 (2) SACR 115
(SCA);
Bothma
v Els
2010
(1) SACR 184
(CC);