On Tuesday the of 22nd of October, the day started early for me with an appearance on Morning Live at seven am. When I arrived at the North Gauteng High Court at 6 o’clock I was not to surprised to see the foreign and local media back in full force, bustling about, busily prepping for what was to be the final day of the Pistorius trial. For many of us involved, this trial had been a long and arduous journey, where friendships had been formed. At times emotions have run high and conflict has arisen as the worlds media jostled for position and content on which to report. By the time Oscar Pistorius arrived at the court I had concluded multiple interviews for local and international media on what would prove to be one of the busiest days of my life.
Oscar Pistorius arrived at the North Gauteng High Court at approximately 09h20 where he would run the proverbial gauntlet into court for the last time. Later that day he would hear his fate from Judge Thokizile Masipa who would hand down his sentence. To me he looked very stressed. A vein pulsed in his forehead as he determinedly set his expression as police officers encircled him and he made his way into the court.
JUDGE MASIPA’S REASONING
As Judge Masipa worked through her reasons for the imposition of the sentence she deemed suitable for Oscar Pistorius a number of themes emerged.
GOALS OF SENTENCING – CASE LAW
Judge Masipa quoted from the Vorster case in order to outline the goals of sentencing. “A Court should strive for balance between the interests of society, the interests of the accused and the seriousness of the offence. A sentence which over emphasises one element cannot be balanced and it is likely to be a wrong sentence. Finally in imposing a sentence a court should be merciful.
This means that it should sentence the accused with a full appreciation for human frailty and the accused own particular circumstances at the time of the offense.” In Vorster the presiding officer was of the opinion that this is particularly applicable to crimes of negligence involving everyday people who are not criminals which result in tragic and lifelong consequences. She stated that courts should strive to keep first time offenders out of prisons where possible. Vorster did not receive a custodial sentence and Judge Masipa was at pains to point out the contrast in the matters in order to explain her reasons for the custodial sentence she would later impose on Pistorius.
Although both the accused were reacting to perceived threats and were emotionally traumatised and tried to resuscitate the victims there were stark contrasts which included:
Unlike Vorster, Pistorius knew there was a person behind the door. Pistorius stated that after he heard the window open the noise or movement in the toilet confirmed his belief that there was a person in the cubicle.
Pistorius fired 4 shots into the door, Vorster fired one shot into the roof.
In the Vorster case the aim of the accused was to frighten away the intruder and in the Pistorius case the aim was to shoot the intruder.
In the Vorster matter if there had been an intruder in the Vorster the intruder would have been able to escape the premises. In the Pistorius case, because of the size of the cubicle the accused knew that the person had no chance of escape or to manoeuvre.
Unlike Vorster, Pistorius was trained in the use of firearms and intended to become a collector. Judge Masipa stated that in her opinion this carries a high degree of responsibility.
Given the degree of negligence in the Pistorius matter, Judge Masipa found that the sentence of three years correctional supervision as put forward by Mr. Maringa and Mrs. Vergeer would not be appropriate.
Quoting additional case law Masipa highlighted the fact, that a door had been opened by the deceased startling the accused and causing him to fire, but in the Pistorius case no such event occurred.
This fact combined with those highlighted above, made the Pistorius case so serious that a non custodial sentence would not be appropriate.
DEFENCE WITNESSES
Judge Masipa took note of Dr .Lore Harzenberg, Oscar’s psychologist and trauma counsellor’s testimony when she considered the remorse of Mr. Pistorius. Although she accepted Harzenberg’ s testimony as sincere, she noted that the counselling relationship which had been formed by Pistorius and Harzenberg could have had an impact on her objectivity.
She dismissed Mr. Maringa’s testimony as biased and his recommendations as inappropriate in this case.
With reference to Peet van Zyl’s testimony, she noted Pistorius involvement in charity work aimed at the upliftment of others, but was quick to point out that the prosecution had made valid points in that, much of this work was aimed at self promotion, marketing and was aimed at satisfying obligations to sponsors, purely for financial gain. She also noted the serious knock Pistorius had taken to his reputation and that all sponsorships had been withdrawn and future opportunities lost.
With reference to Annette Vergeer’s pre-sentence report Judge Masipa did not hold back in her scathing commentary. She attacked the section of Vergeer’s report that dealt with the conditions in prison. She found this to be poorly researched and reliant on old data. She stated that it was clear that Vergeer was biased against prisons. She found it incredulous that a person who claimed to have 28 years experience in the field could compile such a poorly researched report. Furthermore she dismissed her sentence recommendation of correctional supervision as inadequate.
PROSECUTION WITNESS
She described Reeva Steenkamp’s cousin Kim Martin’s testimony as emotive, giving a real face to the victim and giving the court a rare glimpse into who Reeva was and what she meant to her family and them to her. She described Reeva as someone who loved life and people. Judge Masipa acknowledged that Reeva had assisted her family financially. Masipa took note of the devastation Reeva’s death had caused to her family.
Mr. Modise the Acting Director of Correctional Services was next on her list. Jusdge Masipa accepted his testimony, that Correction Services was equipped to house Mr. Pistorius credible and balanced. She accepted that Mr Pistorius would not suffer excessive hardship if she were to impose a sentence of direct inprisonment on the him
SERIOUSNESS OF THE CRIME
Jusdge Masipa explained that the facts of this case as highlighted in part above pointed to the crime being so serious that a non-custodial sentence would not be appropriate and would additionally send the wrong message to society. This could result in people taking matters into their own hands and to vigilante reprisals. A long sentence on the other hand would possibly break the accused which would defeat the goals of sentencing outlined above.
PISTORIUS PERSONAL CIRCUMSTANCES
She emphasised that although she took into account Pistorius disability, she felt that he was well equipped to cope with his challenges and that he had never viewed himself as disabled. He had triumphed over disabled and able bodied people. Given his history she felt that the defence team was now playing on his disability in order to escape the consequences of his crimes.
MERCY
She stated that a sentence would not be appropriate without taking into account the feelings of the accused and hope for his reformation. She stated that true mercy had nothing to do with either weakness or sympathy for the criminal but that it is an element of justice.
THE FINAL SENTENCE
Based on the reasoning above Judge Masipa considered the following sentence to be one that was fair and just, both to society and to the accused.
Count 1: Culpable homicide the sentence imposed is a maximum imprisonment of five years imposed in terms of Section 276 (1)(i) of The Criminal Procedure Act 51 of 1977.
Count 2: The contravention of Section 120 sub section (3)(b )of the Firearms Control Act 60 Of 2000 the sentence imposed is three years imprisonment wholly suspended for 5 years on condition that within the period of suspension the accused is not convicted of a crime where there is negligence involving the use of a firearm.
The sentence in count 1 and the sentence in count 2 shall run concurrently.
UNFIT TO POSSESS FIREARMS
After sentence was passed Gerrie Nel addressed the court on Oscar Pistorius being unfit to possess a firearm. In terms of Section 103 f of the Firearms Control Act 60 of 2000 , once an accused is convicted of any crime in which a firearm is used they are automatically deemed unfit to possess a firearm. The court should thus order the seizure of any competency certificates, licenses and firearms in such a person’s possession. Nel went on to say he was sure that this was unnecessary and that arrangements could be made with the defense to facilitate this outcome immediately. The defense assured their co-operation.
PISTORIUS SENTENCE EXPLAINED
As soon as the sentence was imposed I began fielding questions from a very confused public wanting to understand what the sentence really meant for Oscar Pistorius. Even though Pistorius has received a 5 year custodial sentence, in effect he will only have to serve one sixth of this sentence in prison, before he becomes eligible to apply for his sentence to be converted to correctional supervision. Correctional Services Officials will evaluate him at this point and decide whether he is a suitable candidate for his sentence to be converted. It must be pointed out that this conversion is not automatic and will depend on Pistorius attitude and behaviour in prison.
REACTIONS
The ANC Woman’s League reacted immediately by indicating that they were disappointed with the outcome and hoped for an appeal. They were of the opinion that this was not the message one wanted to send to society regarding the use of firearms and violence against women. The Spokesman for the NPA Nathi Mncube indicated that the State had a strong appetite for an appeal and would retire to study the judgement and evaluate their options in this regard. Members of the public attending court in support of Oscar Pistorius were seen sobbing outside of court, devastated that their hero would find himself behind bars. The Steenkamp family indicated that they were satisfied with the outcome. Mark Batchelor said he was not satisfied and felt that the sentence was very light. 71 percent of people on social media felt that the sentence was too light.
MY FINAL COMMENT
I felt that the sentence was balanced and well reasoned based on the fact that Pistorius had been convicted of culpable homicide. Culpable homicide is a crime of negligence albeit gross negligence in this case.It is not a crime of violence but a mistake in the eyes of the law. It is a crime devoid of intent and as such the sentence, although light and tempered with an overdose mercy, could be considered appropriate. My concern in this case, is that the judgement may be seriously flawed both in fact and in law and because of this Pistorius has in my opinion escaped very lightly. This however could be remedied if successfully appealed by the prosecution.
I am available to assist in any criminal matters. Expert Profiling is contactable on Tel: 390 9957 email: – [email protected] or [email protected] or on Twitter @LauriePieters.
