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[2022] ZAECMKHC 20
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S v Hendricks (27/2021) [2022] ZAECMKHC 20 (4 February 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, GRAHAMSTOWN)
Case
no: 27/2021
NOT
REPORTABLE
In
the matter between
THE
STATE
and
NICHOLAS
HENDRICKS
JUDGMENT
GOVINDJEE,
J
Background
[1]
Nicholas
Hendricks (‘Hendricks’) was convicted on 1 February 2022
of the crimes of attempted murder and rape in contravention
of
section 3
of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act, 2007
,
[1]
involving the infliction of grievous bodily harm.
[2]
On
the charge of attempted murder, it was found that Hendricks
unlawfully and intentionally attempted to kill M.. M… (‘the
complainant’) by unlawfully and intentionally hitting, kicking
and stabbing her with a knife and fork all over her body repeatedly
during the period 13 to 17 September 2020 in Alexandria. On the
charge of rape, it was found that Hendricks unlawfully and
intentionally
committed an act of sexual penetration with the
complainant, who was 18 years of age at the time, by inserting the
handle of a
mop into her vagina without her consent and against her
will. The Director of Public Prosecutions relied on
s 51(1)
, read
with
Part I
of Schedule 2 of the
Criminal Law Amendment Act, 1997
[2]
in seeking life imprisonment for the rape conviction, on the basis
that the rape involved the infliction of grievous bodily harm.
A
court that is satisfied that substantial and compelling circumstances
exist to justify the imposition of a lesser sentence than
that
prescribed by the Minimum Sentences Act must impose a lesser
sentence, entering the relevant circumstances on the record of
proceedings.
[3]
[3]
Section
276
of the
Criminal Procedure Act, 1977
[4]
provides for the sentences which courts can impose. The imposition of
sentence is pre-eminently a matter for the discretion of
the trial
court, which is free to impose whatever sentence it deems appropriate
provided it exercises its discretion judicially
and properly.
Attempting to do so remains an unenviable task. The general purpose
of imposing a sentence is fourfold: retributive,
preventative,
rehabilitative (reformative) and to act as a general deterrent.
[5]
While the retributive aspect tends to dominate, courts are enjoined
to temper the punishment with a measure of mercy.
[6]
[4]
In
this regard, the sentencing court must attempt to achieve a balance
in its sentence, and not approach its task in a spirit of
anger, but
in one of equity. Hastiness, the striving after severity and
misplaced pity are out of place, as are so-called exemplary
sentences
designed to use the crime to set an example for others in society.
[7]
Still, more serious cases clearly require severity, with a certain
moderation of generosity, for the appropriate balance to be
struck.
The object of sentencing is not to satisfy public opinion, but to
serve the public interest.
[8]
[5]
In
the final analysis, the well-known triad of factors to be considered
consists of the crime, the offender and the interests of
society,
[9]
and these factors must be applied, in accordance with
S
v Malgas
,
[10]
to consider whether substantial and compelling circumstances exist to
deviate from any prescribed minimum sentence.
[11]
In
S
v Matyityi
,
[12]
Ponnan JA held that Parliament:
‘…
has
ordained minimum sentences for certain specified offences. Courts are
obliged to impose those sentences unless there are truly
convincing
reasons for departing from them. Courts are not free to subvert the
will of the legislature by resort to vague, ill-defined
concepts…and
ill-founded hypotheses that appear to fit the particular sentencing
officer’s personal notion of fairness.
Predictable outcomes,
not outcomes based on the whim of an individual judicial officer,
[are] foundational to the rule of law which
lies at the heart of our
constitutional order’.
[6]
In
terms of
s 280(1)
of the CPA, sentencing courts have the jurisdiction
to impose a separate sentence for each conviction, as it would have
done if
all the offences had been tried separately, before
considering the cumulative effect of multiple sentences and the
appropriateness
thereof.
[13]
In practice, a court should:
[14]
a.
determine
the appropriate sentence for each individual offence;
[15]
b.
determine what an appropriate total
punishment would be for the totality of the criminal behaviour; and
c.
take such measure or measures as are
required for the sentence determined in (b) above to become the
effective sentence.
Nature of the crimes
and surrounding circumstances
[7]
The
facts of this matter, set out in some detail in the judgment, sketch
a picture of abhorrent behaviour by Hendricks, including
the rape
described. In
S
v Vilakazi
,
[16]
the Supreme Court of Appeal confirmed that rape is a repulsive crime.
In this case, as in case such as
S
v Mofokeng
,
[17]
the rape was accompanied by an ‘inhumane infliction of pain
causing her to suffer…’. Hendricks, on the basis
of
flimsy rumours of the complainant’s infidelity, repeatedly hit,
kicked, tramped, stabbed, cut and pierced her body over
the course of
a few days, so that a medical practitioner confirmed that she
suffered from Crush Syndrome and would have passed
away if not taken
to hospital. The complainant’s degradation included having the
word ‘POES’ carved into her
forehead by a person she
loved. When Hendricks became concerned that the complainant had
informed her landlady about the identity
of her assailant, he again
hit her and stabbed her in the head with a fork, tied her hands,
threatened to rape her and then proceeded
to do so with a broken mop
handle, by inserting this object into her vagina, taking it out and
repeating this twice.
[8]
This
accepted evidence clearly constitutes rape involving the infliction
of grievous bodily harm.
[18]
The court in
S
v Thole
[19]
noted that one of the dictionary meanings of the word ‘involved’
is: ‘to include something as a necessary part
of an activity,
event or situation’. In
S
v Rabako
,
Musi J equated ‘grievous’ with ‘actually serious’,
as follows:
[20]
‘
In
essence then, if the injury inflicted by the accused on the body of
the rape survivor is serious, then it involves the infliction
of
grievous bodily harm. A serious injury at one extreme may mean an
injury so serious as to endanger life, necessitate hospitalization
or
result in permanent loss of bodily or mental faculty; at the other,
it may include a wound that heals rapidly. It should not
be a trivial
or insignificant injury…Whether an injury is serious will
depend on the facts and circumstances of every case’.
[9]
As
such, the rape is of the kind detailed in
Part I
of Schedule 2 of the
Minimum Sentences Act, so that a minimum sentence of life
imprisonment is applicable unless the court is satisfied
that there
are substantial and compelling circumstances for a lesser
sentence.
[21]
[10]
As part of consideration of an appropriate
sentence, it is also important to consider the effect of the crimes
on the victim. In
this case the evidence was that the complainant
remained in hospital for approximately two weeks and underwent an
operation. She
is unable to stand for long periods of time, which
affects her ability to work, and also experiences shortness of
breath. The scars
from her stabbing remain visible, which has
affected her emotionally, so that it was a long time before she was
comfortable being
seen in public. She required the assistance of a
psychologist for three to four months, and took sleep- and
stress-related medication.
The complainant testified that she no
longer has any interest in men or relationships as a result of her
ordeal. She understandably
became emotional at times during her
testimony, notably when recollecting the word carved on her forehead
and the way she was raped.
Hendricks’
circumstances and interests
[11]
Hendricks testified in mitigation of
sentence. He is 27 years of age, married with two boys aged four and
six. His highest education
level is grade 11. He was living with his
wife and one of his sons prior to his arrest (on 17 September 2020)
and was the owner
of a hair salon, earning approximately R3500 per
month.
[12]
Hendricks’ parents passed away in
traumatic circumstances when he was two years of age: his father shot
his mother, aunt and
then himself, while he was in his mother’s
arms and he had never received counselling for this. He had no
previous convictions
or pending matters and had pleaded guilty to the
attempted murder charge, also conveying an apology to the complainant
via his
counsel during her cross-examination. He maintained his
innocence in respect of his rape conviction. When asked how he felt
about
what had occurred, he indicated that he was ‘heartbroken’
without elaborating or demonstrating real remorse. Mr Charles
argued,
on Hendricks’ behalf, that consideration should be given to the
medical assistance he had provided to the complainant,
and that the
cumulative effect of his circumstances justified the imposition of a
lesser sentence than the prescribed minimum.
The interests of
society
[13]
Courts
have repeatedly reflected on the horrific nature of the offence of
rape, given that it constitutes a humiliating, degrading
and brutal
invasion of the privacy, dignity and person of the victim. As such,
it has been accepted that the crime deserves severe
punishment.
[22]
As the court held in
S
v Ncheche
:
[23]
‘
A
woman’s body is sacrosanct and anyone who violates it does so
at his peril and our Legislature, and the community at large,
correctly expects of our courts to punish rapists severely.’
[14]
Society
expects that the scourge of gender-based violence must be addressed
and must cease. This applies also in cases of domestic
relationship.
[24]
The
Domestic
Violence Act, 1998
, for example, recognises that domestic violence is
a serious social evil, that there is a high incidence of domestic
violence within
South African society and that victims of domestic
violence are among the most vulnerable members of society.
[25]
[15]
Society’s
opprobrium has translated into the Minimum Sentences Act, which by
way of a prescribed, albeit discretionary minimum
sentence regime,
has drastically impacted upon the exercise of a court’s
discretion in imposing sentence.
[26]
Hendricks’ conduct has been found to fall within the purview of
this Act. A court should not for ‘flimsy reasons’
and
‘speculative hypotheses favourable to the offender’
deviate from the minimum sentence prescribed, or apply their
personal
notion of fairness.
[27]
The
question remains whether there are substantial and compelling reasons
to justify a lesser sentence than the minimum sentence
prescribed.
Analysis
[16]
This
court is duty bound to consider Hendricks’ personal
circumstances, as well as that of the complainant, who was 18 years
of age at the time of the incident. The nature of the crimes must
also be considered, together with the interests of society, seasoned
with a measure of mercy and bearing in mind the various purposes of
punishment, including prevention, retribution, rehabilitation
and
deterrence.
[28]
It behoves a
court to consider all the circumstances of the case to determine
whether the imposition of a minimum sentence is proportionate
to the
particular offence.
[29]
[17]
The factors relied upon by Hendricks as
substantial and compelling have been considered in their totality.
The main factors in his
favour are that he is a first offender and
has young children. The other factors cited carry less weight when
given proper consideration.
He has, for example, suffered the trauma
of coming to know of the circumstances surrounding the passing of his
parents and aunt,
but this was some 25 years ago and he could have
taken steps to obtain help if this still weighed heavily upon him.
There is no
suggestion that he did so.
[18]
Hendricks
has been in custody since his arrest in 2020. While he pleaded guilty
to attempted murder, this was in the face of overwhelming
evidence of
his guilt, and his testimony offered a watered-down version of
events. It has correctly been held that a guilty plea
in these
circumstances is a neutral factor in the final analysis.
[30]
[19]
Hendricks’ approach during the time
of the sustained attack was to utilise his relationship with the
complainant to cover
his own back. He had ample opportunity to come
forward at that time and to express remorse about his conduct and
inability to control
his rage. Instead, his violent behaviour
continued, demonstrating a complete disregard for the complainant,
with whom he was involved
in a love relationship. This prolonged
infliction of pain diminishes, in my view, Hendricks’ limited
attempts to assist the
complainant with medical care following his
attacks. Rather than focus on her well-being, his focus was on
perpetuating the tale
about the robbery and limiting her interaction
with people who might discover the truth. It is for this reason that
he offered
to take her to hospital himself, instead of allowing her
to travel by ambulance, and instructed her to advise hospital staff
that
she did not require their attention. The evidence demonstrates
that his small acts of kindness occurred mainly in the presence of
his friend or the friend’s mother. In fact, his rage was
simmering without dissipation and culminated in the grotesque events
of 16 and 17 September 2020.
[20]
While
conveying an apology to the complainant during her testimony, this
apology can only be described as half-baked, as he continues
to deny
the rape. Despite being educated up to grade 11, a business owner and
able to express himself clearly, Hendricks could
only offer the
single suggestion of being ‘heartbroken’ when pressed as
to how he felt about what had occurred. This,
in my view, is
something well short of genuine remorse. As Ponnan JA held in
S
v Matyity
i:
[31]
‘
There
is, moreover, a chasm between regret and remorse. Many accused
persons might well regret their conduct, but that does not
without
more translate to genuine remorse. Remorse is a gnawing pain of
conscience for the plight of another. Thus genuine contrition
can
only come from an appreciation and acknowledgement of the extent of
one’s error. Whether the offender is sincerely remorseful,
and
not simply feeling sorry for himself or herself at having been
caught, is a factual question. It is to the surrounding actions
of
the accused, rather than what he says in court, that one should
rather look. In order for the remorse to be a valid consideration,
the penitence must be sincere and the accused must take the court
fully into his or her confidence.’
[21]
While it may have been conveyed that
Hendricks had been upset by his suspicions of the complainant’s
infidelity, there is
no explanation of what has provoked his supposed
change of heart or sense that he possesses a true appreciation of the
consequences
of his actions. These are matters peculiarly within his
knowledge.
[22]
It
is important to consider the various circumstances cumulatively, and
with specific focus on Hendricks’ clean record and
young
family. The legislature has directed that, when imposing a sentence
in respect of rape, an apparent lack of physical injury
to the
complainant and the relationship between Hendricks and the
complainant prior to the offence being committed cannot constitute
substantial and compelling circumstances justifying the imposition of
a lesser sentence.
[32]
I am
also cognisant that a finding of an absence of substantial and
compelling circumstances will result in the gravest of sentences
being passed and that the consequences of this are profound.
[33]
It requires a meticulous weighing of all relevant factors before a
decision to impose it can be justified.
[34]
[23]
The
aggravating features of the matter are undeniably severe and overtake
the various mitigating considerations, including his lack
of previous
convictions.
[35]
The
complainant was made to suffer and was sadistically hit and stabbed
in the head, where she had already suffered several injuries,
immediately prior to being raped with the mop handle. The effect of
this on the complainant, who was only 18 years of age at the
time,
has already been described.
[24]
The
remarks of the Supreme Court of Appeal in
S
v Kaywood
,
where the complainant had suffered a dozen stab wounds, amongst other
injuries, appear to be apposite:
[36]
‘
The
appellant’s personal circumstances pale against the abhorrent
nature and level of cruelty with which he committed the
crimes under
consideration. Any lesser sentence would not be justified. I have
already set out the injuries sustained by the appellant
and the
impact thereof on her. The offences committed by the appellant were
particularly abhorrent. First, he inflicted untold
pain on the
complainant, and then when she must have been writing in pain, soiled
with dirt and blood, he performed one of the
most degrading acts on
her. As a result of his exceedingly cruel conduct, the complainant
was left permanently, physically and
emotionally scarred…a
departure from the minimum prescribed sentence would be nothing short
of maudlin sympathy.’
[25]
In
this instance, that degrading act was performed by way of the
repeated insertion of a broken mop handle into her vagina. In the
final analysis, I am obliged to impose the minimum sentence
prescribed by the legislature unless there truly convincing reasons
for departure.
[37]
In all the
circumstances, I must conclude that there is an absence of
substantial and compelling reasons, justifying a sentence
of life
imprisonment on count two, and that this sentence is proportionate to
the crime. A sentence of twenty years’ imprisonment
is imposed
for the count of attempted murder, considering the severity of the
circumstances surrounding the prolonged attack, and
excluding any
consideration of the rape as an aggravating factor. In terms of s
39(2)(
a
)(i)
of the
Correctional Services Act, 1998
,
[38]
this sentence must run concurrently with the life sentence.
[39]
Order
[26]
The following sentence is imposed:
a.
The accused, Nicholas Hendricks, is
sentenced to life imprisonment in respect of the conviction of rape
involving the infliction
of grievous bodily harm and twenty years’
imprisonment in respect of the conviction of attempted murder.
A.
GOVINDJEE
JUDGE
OF THE HIGH COURT
[1]
Act
32 of 2007 (‘the Act’).
[2]
Act
105 of 1997 (‘the Minimum Sentences Act’).
[3]
S
51(3)(
a
)
of the Minimum Sentences Act.
[4]
Act
51 of 1977 (‘the CPA’).
[5]
S
v Rabie
1975 (4) SA 855 (A).
[6]
Rabie
at 862G-H.
[7]
See
S
v Khulu
1975 (2) SA 518
(N) 521-522.
[8]
S
v Mhlakhaza and Another
[1997] 2 All SA 185
(A) at 189. Also see
S
v M
(Centre
for Child Law as
amicus
curiae
)
2007 (2) SACR 539 (CC).
[9]
S
v Zinn
[1969] 3 All SA 57
(A) at 540G-H.
[10]
2001
(1) SACR 469 (SCA).
[11]
See
Radebe
v The State
[2019] ZAGPPHC 406 at para 12.
[12]
2011
(1) SACR 40
(SCA) at para 23. Also see
Malgas
supra
,
in respect of the prescribed period of imprisonment in the Minimum
Sentences Act ordinarily being imposed for the commission
of the
listed crimes in the specified circumstances, in the absence of
weighty justification, as quoted in
Otto
v S
[2017]
ZASCA 114
at para 21.
[13]
S
280(1) provides, in part, that ‘When a person is at any trial
convicted of two or more offences…the court may sentence
him
to such several punishments for such offences…’
[14]
SS
Terblanche
A
guide to sentencing in South Africa
(3
rd
Ed) (LexisNexis) (2016) 199.
[15]
In
doing so, the established principles in respect of multiple crimes
sharing aggravating features, and the avoidance of a double
consideration of aggravation, must be considered: Terblanche
supra
204-205.
[16]
2009
(1) SACR 552
(SCA) at 555h.
[17]
2016
JDR 1591 (FB).
[18]
See
the factors considered by the majority of the court to establish
serious injury in
S
v Rabako
2010 (1) SACR 310
paras 10 and 14. These include the actual injuries
sustained, the instrument or object used, the number of the wounds –
if any – inflicted, their nature, their position on the body,
their seriousness and the results which flowed from their
infliction. As Molemela AJA held in
Director
of Public Prosecutions, Gauteng Division, Pretoria v Moabi
2017 (2) SACR 384
(SCA) para 15, the question is ‘…whether,
as a matter of fact, the victim… sustained grievous bodily
harm’.
[19]
2012
(2) SACR 306 (FB).
[20]
Supra
para
7.
[21]
Cf
Thole supra
para 9, where the only evidence before the court indicated that the
appellant had stabbed the deceased
after
he had raped her, and that the rape had already been concluded by
the time that he stabbed her, so that it was held that the
infliction of grievous bodily harm was not
involved
in
the rape of the deceased. In
S
v Tuswa
2013 (2) SACR 269
(KZP) para 22, Stretch AJ (as she then was)
considered it unnecessary to establish intention to conclude that
the rape involved
the infliction of grievous bodily harm. In
Vilakazi
supra
para 13, Nugent JA noted the absence of any gradation between
imposition of ten years’ imprisonment for rape and life
imprisonment in instances where the Minimum Sentences Act found
application.
[22]
S
v Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA) at 5B. When imposing a sentence in respect of
the offence of rape, an apparent lack of physical injury to the
complainant
and any relationship between the complainant and accused
prior to the offence being committed are not, on their own,
considered
to be substantial and compelling circumstances justifying
the imposition of a lesser sentence: section 51(3)(
a
A)
of the Minimum Sentences Act.
Radebe
supra
para 34. In
Vilakazi
supra
para 54, Nugent JA noted that ‘there comes a stage at which
the maximum sentence is proportionate to an offence and the
fact
that the same sentence will be attracted by an even greater horror
means only that the law can offer nothing more.’
[23]
[2005] ZAGPHC 21
;
2005
(2) SACR 386
(WLD) para 35.
[24]
The
Domestic Violence Act, 1998 (Act 116 of 1998) defines a ‘domestic
relationship’ to include a relationship between
people engaged
in an intimate or sexual relationship of any duration, and who share
or recently shared the same residence: s
1. The Preamble of this Act
reflects that the State is committed to the elimination of domestic
violence, which is defined in
s 1 to include physical abuse, sexual
abuse and any other controlling or abusive behaviour towards a
complainant.
[25]
Preamble
to the
Domestic Violence Act, 1998
.
[26]
S
v September
[2014] ZAECGHC 38 para 8.
[27]
S
v PB
2011
(1) SACR 448
(SCA) para 21;
Matyityi
supra
para 23.
[28]
S
v Genever and Others
[2008] ZAWCHC 7
;
2008 (2) SACR 117
(C) at 122
c-d
.
[29]
Vilakazi
supra
para 15.
[30]
S
v Barnard
2004
(1) SACR 191
(SCA) at 197;
Matyityi
supra
para 13.
[31]
Supra
para
13 (footnotes omitted).
[32]
S
51(3)
(a
A
)
(ii)
and (iv) of the Minimum Sentences Act. The gynaecological
examination of the complainant, five days after her rape, revealed
nothing abnormal: para 28 of the judgment.
[33]
S
v Bull
2001
(2) SACR 681
(SCA) para 21.
[34]
S
v Dodo
2001 (1) SACR 301 (E).
[35]
See
Vilakazi
supra
para 58.
[36]
2016
JDR 2203 (SCA) paras 15, 16.
[37]
Matyityi
supra
para
23.
[38]
Act
111 of 1998.
[39]
See
S
v Ziqhu
2014 (1) SASV 247 (VB).