Oscar Pistorius sentence: what will Judge Masipa decide?

Oscar Pistorius

House arrest would be 'ridiculous' punishment for Oscar Pistorius, says Reeva Steenkamp's sister

LAST UPDATED AT 21:57 ON Mon 20 Oct 2014

Five questions for Judge Masipa

Tomorrow Oscar Pistorius will finally discover whether he faces jail time for the culpable homicide of his girlfriend Reeva Steenkamp.

The prosecution wants him to serve at least ten years in prison, while his own lawyers have argued that he should serve a three-year community-based sentence, such as 16 hours of domestic cleaning a month.

The athlete's brother, Carl Pistorius, has vowed to stand by his younger sibling regardless of the sentence. "We cannot speculate ahead of final sentencing but what I do know for certain, regardless of the outcome, the three of us [himself, Oscar and their sister Aimee] will stand together and continue to stand together," he told ITV News.

Reeva's half-sister Simone Cowburn has made a plea in the Daily Mail for Judge Thokozile Masipa to hand down a heavy prison sentence. "Community service and house arrest are ridiculous," she told the newspaper. "These should be for people who are stealing or other minor offences. Not shooting somebody. Reeva deserves justice."

South Africa's Correctional Services department today denied claims that it had already prepared a prison cell for the Paralympian at Kgosi Mampuru II, formerly known as Pretoria Central Prison.

Even if Pistorius is handed a prison sentence, he could still have up to 14 days of freedom if he decides to appeal against his sentence or conviction, says South Africa's New Age newspaper.

Judge Masipa would have to hear the appeal submissions within the next two weeks and decide whether or not another court might come to a different conclusion. However, she could decide to refuse any request for bail following the sentencing tomorrow.

Other commentators in South Africa are hoping that the legacy of the trial will reach beyond Pistorius and improve conditions for the thousands of less recognisable South Africans in prison.

Gushwell Brooks at the Daily Maverick has called for an overhaul of the whole "terrible" system. "Pistorius' defence team has compellingly argued that prison is an unsuitable and unsafe place for the athlete to rehabilitate," he says. "But this is true, too, of the thousands of other offenders living behind bars."

Robyn Leslie, who works at the Wits Justice Project, which investigates remand, detention and miscarriages of justice in South Africa, believes Pistorius's "wealth, status and notoriety" will mean any prison time will be "uneventful" for him.

Writing in The Independent, she says: "The question of Pistorius's sentence – and whether it will include time in jail – should stop fascinating South Africans and the world alike. Rather, we should use this surge of interest in our criminal justice system to shine a light on the poor, dispossessed and uninformed who are trapped perilously within it."

 

Oscar Pistorius sentencing: 'society demands a prison sentence'

17 October 
 

Oscar Pistorius's future was on the line in court today as the prosecution and defence made their closing arguments in his sentencing hearing.

Pistorius faces up to 15 years in jail after he was found guilty of culpable homicide last month for shooting his girlfriend Reeva Steenkamp on Valentine's Day in 2013. Judge Thokozile Masipa also found Pistorius guilty of one charge of negligently discharging a firearm in a crowded restaurant in Johannesburg in January 2013.

Defence lawyer Barry Roux described Pistorius as a "victim" and urged the judge to return a community-based sentence. He pointed to the final judgment, which found that Pistorius had genuinely mistaken Reeva for an intruder, and said that no punishment can be worse than the experiences he has suffered in the last 18 months. 

However, prosecutor Gerrie Nel said that the interests of society "demand a prison sentence" and that a minimum of ten years was required. He reminded the court of the "heart-wrenching" evidence given by Reeva's cousin Kim Martin. He ridiculed Pistorius for claiming that he was a victim and accused him of "shamelessly" using his disability as a mitigating factor.

Here is what we heard today:

11.25am: Prosecutor Gerrie Nel begins to pick apart the defence's argument about the attacks on Pistorius in the media. Judge Masipa interrupts to assure Nel that she will be disregarding those points. He argues that the only "reasonable sentence would be a long-term incarceration" and urges the court to let the Correctional Services department take responsibility for what happens to Pistorius after sentencing. If they cannot cater for him, then we come back to court, says Nel. He adds that "it is not even a contentious issue" because Correctional Services has made it clear that they can accommodate Pistorius's needs.

Nel says that the principle of uBuntu and restorative justice is "not a bad one" but is "not a principle that can be considered in this case at all". He says this is a matter so serious that the interests of society "demand a prison sentence". He agrees with the defence that Pistorius is unfit to possess a firearm again. Asked how long a prison sentence he is suggesting, Nel says that the "minimum that society will be happy with is ten years in prison". 

Nel completes his closing argument and Judge Masipa allows defence lawyer Barry Roux to put a few final corrections to the court. Roux notes that Pistorius does not have rails in his home but does have a bench in his bathroom instead. He points out that other serious cases of culpable homicide have resulted in restorative justice. Masipa adjourns the court after thanking both sides and telling the attorneys that she was "very impressed" by the way they have conducted themselves throughout the trial. Sentencing will reconvene on Tuesday 21 October.

11.00am: The fact that Pistorius is sorry Reeva is dead "is not remorse", says prosecutor Gerrie Nel. The accused, who coped "brilliantly" in life in spite of his disability, is now "shamelessly" using his disability as a mitigating factor, says the prosecution. Nel suggests that Pistorius uses his disability when it suits him. He tells the court his house has no railings in the shower or toilet, yet because he faces prison, he suddenly needs railings. "If that is so, then it is disingenuous," says Nel. A remorseful or anxious person would not go out to a nightclub, he adds.

The prosecutor praises the testimony of Zac Modise, acting head of South Africa's Correctional Services, and condemns that of defence witness Annette Vergeer, a social worker and registered probation officer. Vergeer, who painted a very negative picture of South Africa's prisons, gave the court a "sketchy", "outdated" and "negatively biased" report, says Nel. He tells the judge he was "flabbergasted" when Vergeer admitted that she based some of her report on a speech made in 2005. Would it not be a bad day if this court decided that our prisons are not good enough for extradition from other countries around the world, asks Nel.

10.45am: Prosecutor Gerrie Nel turns to the technical aspect of his argument. He claims Pistorius is guilty of "gross negligence", bordering on dolus eventualis, a murder charge that means the accused is responsible for the foreseeable consequences of his actions. Nel cites six points from the judgment that support his argument: the size of the toilet; the calibre of ammunition; the fact that a "reasonable person" would have realised the consequence of their actions; Pistorius knew someone was behind the door; he acted too hastily; and he used excessive force.

Nel suggests there are still aspects of the case that do not make sense and claims Pistorius did not act like a "reasonable person" from the moment he heard the window open. He says Pistorius did not ask whether Reeva had heard the noise in the bathroom nor establish whether she had heard him. Pistorius is "not a victim", says Nel. "He cannot be a victim, he caused it." The prosecutor imitates the accused: "I'm a victim, feel sorry for me, the media victimised me. When I wanted the media to capture my brilliant athletic performance, I loved them; when the media write about my trial it's unfair."

10.10am: Prosecutor Gerrie Nel takes the stand. Society's interests are at stake, he tells the judge. Society will want to know what happens if someone fires four shots through a door into a closed cubicle. We have thought about the accused for months, says Nel. Now is the time to think about the deceased.

Nel says that Reeva's cousin Kim Martin, who gave evidence earlier this week, was not only representing the family, she was representing society. He argues that of all the noises discussed in court – the screams, the cricket bat, the shots – it was the "softly spoken words" of Martin that "trounced" them all. Martin's "heart-wrenching" evidence gave insight into the impact of the crime, says Nel.

The prosecutor turns to the money offered by Pistorius to Reeva's parents. Nel says money for a sold car for the death of a loved daughter cannot be seen as a positive gesture. "The offer is nothing but an attempt to influence sentence," he says. Nel argues that the timing of the offer – made in between the judgment and the sentence – shows that the offer is "in fact something terribly negative".

9.50am: Roux quotes from Pistorius's 30-day mental health evaluation. He is not a danger to society, says Roux. His condition is also likely to worsen and the risk of suicide might increase if he does not receive proper medical care.

Roux reminds the court that Zac Modise, acting head of South Africa's Correctional Services, yesterday conceded the general section of a prison would not be suitable for Pistorius. Roux again raises concerns about the risk of disease if Pistorius is permanently detained in a hospital unit. His negligence needs to be balanced against his disability and vulnerability, says Roux. "There needs to be compassion." The attorney insists that a community-based sentence is a real punishment and is not restricted to the 16 hours a month proposed earlier this week.

In conclusion, Roux urges Judge Masipa to give "serious regard" to a community based punishment, restorative justice and to strive to put "some patches on the pain".

9.30am: Roux cites from other culpable homicide cases in which the perpetrators did not go to prison. He talks about a similar case in which a man heard a bathroom window being opened in his home and fired shots into a door, only to discover that it was his wife. In another case, an employer accidentally shot his helper's grandson in the head and was left emotionally devastated.

Pistorius was young at the time of the shooting, says Roux. He did not have the wisdom people gain in later years. Roux says that no punishment can be worse than his experiences in the last 18 months. "The denigration, the humiliation, the ridicule, the blame, the false allegations – ongoing, worldwide," says Roux. "That's what he was subjected to. He stands there, giving evidence and crying, knowing the whole world is watching. He was absolutely exposed."

Roux turns to the money offered to Reeva's parents. "It is not about the money," says the attorney. It is just showing the court that the accused is taking responsibility for his actions. June and Barry Steenkamp have said they do not want the lump sum offered by Pistorius and have said they will be paying back monthly sums paid to them over the last year. Roux suggests the court can order that the money now goes to charity. Pistorius is crying silently as Roux tells the judge: "He wants to make good as far as possible."

9.00am: Defence lawyer Barry Roux is presenting his closing argument. He begins by saying that it is "beyond any argument" that the loss of a child is "the greatest devastation". But he says it is necessary to look at the facts as found by the court. Judge Masipa has accepted that Pistorius genuinely, although erroneously, believed there was an intruder in the toilet, not Reeva. Roux quotes from the judgment, in which Masipa said Pistorius did not subjectively foresee that he would kill the person behind the door, let alone the deceased, as he thought she was in the bedroom at the time.

There was a "high degree of negligence", admits Roux. But he says this cannot be isolated and must be taken in the context of the individual. "Whatever way we see it, the accused's actions were to some extent dominated by vulnerability and anxiety," says Roux. There was not any "deviousness" or "conscious unlawfulness", he says. 

Roux notes that some members of society would want to see the maximum penalty imposed. Some would want the death penalty, he says. "But that is not the test." Roux says Pistorius must be sentenced with the "interests of society" in mind. On a slight tangent, Roux tells the court that a man on a bus had recommended he read a book called uBuntu and the Law by Nyoko Muvangua and Drucilla Cornell. The text, about the southern African concept of uBuntu, which roughly translates as humanity, explores the way in which restorative justice and compassion can be applied in law for the best interests of society.

The defence lawyer says that in the beginning there was "an accused and a victim". But he says "very shortly after this, the accused became the victim". Roux says he has "never, ever" seen such unfair attacks as on Pistorius shortly after the shooting. False reports, spread by media and social media, claimed he had crushed Reeva's skull with the cricket bat and that he was taking steroids. Roux says he can see why the National Prosecuting Authority refused to allow Shrien Dewani's trial to be televised. Pistorius was made to look at a photo of the deceased, whom he loved, before the image was published worldwide under the banner of "cold blooded murderer", says Roux. The "extreme emotions" suffered by the accused are not in dispute, says the lawyer.

Five questions for Judge Masipa

The sentencing hearing for Oscar Pistorius heard from six witnesses, including the athlete's personal psychiatrist, Reeva Steenkamp's cousin and the head of South Africa's Department of Correctional Services. The two sides have debated in detail the conditions Pistorius might face in prison and the extent to which the athlete feels remorse for killing his girlfriend on Valentine's Day last year. After being found guilty of culpable homicide and negligently discharging a firearm in a crowded Johannesburg restaurant, Pistorius's punishment could range from a suspended jail sentence and a fine to 15 years in prison.

Under South Africa's sentencing guidelines, Judge Masipa must consider the seriousness of the offences and the personal circumstances of the offender, as well as public interest. Quite separate from public opinion, this concerns deterrence, rehabilitation, protection and retribution.

Here are five questions she will need to consider:

Is a community sentence appropriate?

Two defence witnesses have recommended that Pistorius be placed under house arrest for three years, carrying out 16 hours of community service, such as cleaning, each month. Prosecutor Gerrie Nel repeatedly described the proposed sentence as "shockingly inappropriate", perhaps as a subtle reminder to the judge that under South African case law an appeal can be made on the grounds that a sentence is deemed "shocking, startling or disturbingly inappropriate". Reeva's cousin Kim Martin said Pistorius "needs to pay for what he has done" and that a community based sentence would enable him to think his actions were acceptable. "We need a message to society that you can't do this," she told the court.

Will prison cater to Pistorius's physical needs?

Annette Vergeer, a social worker and registered probation officer, claimed there were no baths available in prison and Pistorius risked falling on slippery cement floors, with no rails in toilets or showers. She even suggested he might have his prosthetic legs taken away from him. However, Moleko Zac Modise, the acting national commissioner of the Department of Correctional Services, flew into Pretoria to defend the prison service after hearing her claims. He said he could "confidently" confirm that nearby prisons had hospital units that could cater to Pistorius's disability.

Is prison safe for Pistorius?

Vergeer painted a very negative picture of South Africa's prisons, citing risks of gang rape, violence, disease and drugs. She claimed that Pistorius would be particularly vulnerable to these dangers because of his disability. Defence lawyer Barry Roux also read out claims from local media that Pistorius faced threats from gang leaders inside prison. However, Correctional Services insisted Vergeer's evidence is "inaccurate" and said that Pistorius would be placed in a hospital unit, possibly in a single cell, away from the general prison.

What would be best in terms of rehabilitation?

The defence has argued that a community based sentence would give Pistorius – a first-time offender – a far better chance of rehabilitation. Vergeer says prison would "break" Pistorius and "take away his future", while social worker Joel Maringa suggested prison would "destroy" the athlete. But the acting national commissioner of Correctional Services told Judge Masipa that rehabilitation was the aim in prison and that sessions such as anger management, counselling and skills development are offered to inmates.

Is Pistorius sorry?

Reeva Steenkamp's cousin Kim Martin told the court that she did not believe Pistorius's public apology to her family was "genuine" or "sincere". However, Dr Lore Hartzenberg, Pistorius's personal psychologist, insisted that his remorse and pain are genuine and that he has taken responsibility for the fact that Reeva died because of his "wrongdoings". The court heard that Pistorius had written to Reeva's parents to apologise shortly after her death, but their representatives advised him not to send the letters, and that he "desperately" wanted a private meeting with the family to apologise.

 

     

More about Oscar Pistorius:

Oscar Pistorius sentencing: as it happenedOscar Pistorius was 'on phone to ex' on eve of shootingOscar Pistorius: 'there is still a missing link' Oscar Pistorius guilty of culpable homicide - but not murderOscar Pistorius: How long might he face in jailWhat is Oscar Pistorius's defence and can it succeedOscar Pistorius involved in nightclub fightOscar Pistorius: some defence witnesses refused to testifyOscar Pistorius judge's concern over mysterious missing cordOscar Pistorius: seven key quotes from the murder trialSix questions for Judge Masipa Family denies athlete took acting lessonsReeva 'had no time to scream'Pistorius told: 'You are getting deeper into trouble'Pistorius describes night he shot Reeva SteenkampPolice release photos of crime sceneFive questions Pistorius will need to answerPistorius used bullets that cause 'maximum wounding'

  · 

For further concise, balanced comment and analysis on the week's news, try The Week magazine. Subscribe today and get 6 issues completely free.