Hewitt v The State

The appellant, Robert Anthony John Hewitt, a retired world-renowned tennis champion and instructor, was convicted in March 2015 at age 75 of two counts of rape and one count of indecent assault. The offences were committed against young girls who were his tennis students in the early 1980s and 1994. The first complainant, aged about 12, was raped at a tennis club house in Boksburg. The second complainant, aged about 13, was subjected to sustained sexual abuse culminating in rape at Sun City Hotel in Rustenburg. The third complainant, aged 17, was indecently assaulted over a period of years in 1994. The appellant exploited his position as their tennis coach, making lewd comments, fondling, exposing himself, and ultimately raping two of the victims. The second complainant's family laid a charge which was aborted due to jurisdictional issues. The third complainant's family reported him to the South African Tennis Association, leading to his resignation, but no criminal charge was laid on legal advice. The appellant evaded justice for three decades until his conviction in 2015. At sentencing, extensive evidence was led regarding his advanced age, various medical conditions (osteoarthritis, coronary artery disease, peptic ulcer disease), 50-year marriage, two adult children, grandchildren, and status as a first offender. He pleaded not guilty and showed no remorse.

• Whether the sentence of six years' effective imprisonment was startlingly inappropriate given the appellant's advanced age (75 years), ill health, and the three-decade delay in prosecution
• Whether the High Court properly exercised its sentencing discretion in balancing the seriousness of the offences against the appellant's personal circumstances
• The appropriate weight to be given to mitigating factors (age, health, delay, social status) versus aggravating factors (abuse of trust, multiple victims, sustained offending, lack of remorse) in sentencing for historical sexual offences against children

The appeal against sentence was dismissed. The effective sentence of six years' imprisonment imposed by the High Court was confirmed.

The binding legal principles established are: (1) An appellate court may interfere with a sentence only where the trial court's discretion was exercised improperly or unreasonably, creating a 'striking', 'startling' or 'disturbing' disparity between the sentence imposed and what the appellate court would impose. (2) In sentencing for serious sexual offences against children, the court must balance mitigating personal circumstances (age, health, delay in prosecution, first offender status) against the serious nature of the crimes, aggravating factors (abuse of trust and authority, multiple victims, sustained offending, lack of remorse), consequences for victims, and societal interests. (3) Advanced age and poor health are mitigating factors but are not bars to imprisonment where the offender can lead an active life and required medical treatment is available in prison. (4) An offender's high social status or previous achievements do not warrant special sentencing treatment, as the Constitution requires equality before the law regardless of class distinctions. (5) Substantial delays in prosecuting historical sexual offences, while regrettable and a factor to consider in mitigation, do not preclude the imposition of appropriate custodial sentences that serve the purposes of deterrence and retribution. (6) The sentence must fit both the criminal and the crime, be fair to society, and be blended with mercy according to circumstances, but scrupulous care must be taken not to over-emphasize personal circumstances at the expense of the seriousness of sexual offences against children.

The Court made several non-binding observations: (1) It lamented that South Africa was once shamefully titled the 'rape capital of the world' by Interpol in 2012, reflecting society's ongoing struggle with sexual violence. (2) The Court noted it is 'not an unusual phenomenon' for sexual offence cases to involve substantial delays before being brought to justice, and that courts have 'ably delivered just decisions' despite these difficulties. (3) The Court observed that the element of rehabilitation 'bears little relevance' in cases involving offenders of very advanced age (75 years). (4) The Court commented that while lack of remorse is not technically an aggravating circumstance, genuine contrition and appreciation for the devastation caused would have 'redounded in the appellant's favour'. (5) The Court noted with apparent disapproval that during mitigation, the first complainant was referred to as a 'so-called rape victim' and was criticized for speaking publicly about the impact of the rape, demonstrating continued lack of empathy by the defence. (6) The Court emphasized the 'devastating and lasting effect' sexual offences have not only on victims but on their families, noting how the second complainant's parents and sister 'never recovered' and how it affected her children and her parenting.

This case is significant in South African criminal law for several reasons: (1) It demonstrates the judiciary's unwavering stance that serious sexual offences against children warrant substantial custodial sentences regardless of the offender's age, health, or social status, reinforcing the constitutional principle of equality before the law. (2) It provides guidance on sentencing for historical sexual offences, confirming that substantial delays in prosecution, while regrettable and a factor to consider, do not preclude appropriate punishment. (3) It illustrates the proper balancing exercise required in sentencing, particularly the weight to be given to victim impact and societal interests against personal circumstances of elderly, first-time offenders with health issues. (4) It reinforces the limited scope for appellate intervention in sentencing decisions, requiring a 'striking' or 'startling' disparity before interference is warranted. (5) It emphasizes that lack of remorse, while not an aggravating factor, prevents an offender from benefiting from mitigation that genuine contrition would provide. (6) The case sends a strong message about accountability for sexual offences against children, regardless of how much time has passed or the perpetrator's subsequent achievements or status in society.