The application by the state for leave to appeal Oscar Pistorius’s sentence and conviction was not an easy task, the Pretoria high court heard on Tuesday.
“It’s never an easy task to bring an application for leave to appeal,” prosecutor Gerrie Nel said. “It’s an exception, it’s my first … we do it with the utmost respect for the court … it wasn’t a decision lightly taken.”
Nel said he would not argue the case again, but focus on the issue at hand. Pistorius was not in court on Tuesday, but he was represented by his lawyers Barry Roux and Brian Webber. The state has filed papers calling for a heavier conviction and harsher sentence to be imposed on the paralympic athlete.
Pistorius testified that he accidentally shot dead his law graduate girlfriend, Reeva Steenkamp, through a locked bathroom door at his Pretoria home on Valentine’s Day last year.
He said he thought she was an intruder. Neither Pistorius’s relatives nor the Steenkamps were in court on Tuesday. On October 21 Judge Thokozile Masipa jailed Pistorius for five years for culpable homicide. For discharging a firearm at Tasha’s restaurant in Sandton, Johannesburg, in January 2013, he was sentenced to three years in jail, suspended for five years.
On Tuesday, Nel said the sentence was “shockingly inappropriate”. Masipa was not flanked by her assessors – as during the trial – and will deal with the application alone. Three cameras were set up in court – one at the back and two on either side of the front of the court.
Reeva Steenkamp was an innocent woman who died a horrendous death, Nel told the court.
“An innocent woman was shot and killed in the most horrendous circumstances,” Nel said. “This is not an instance where shots were fired and someone died … Her death was caused by gross negligence of this respondent.”
Nel said that for the defence to present evidence from probation officer Annette Vergeer during aggravation of sentencing, that prisons were not equipped to deal with his disability, showed a lack of remorse. “To present evidence like this … is not an indication of someone who has remorse,” he said.
“The remorse didn’t carry through to sentencing.”
Vergeer had told the court there were no handrails in prison showers and that the floors were slippery. Nel said Pistorius did not have rails in the shower in his own home.
Nel argued on Tuesday that Pistorius did not act responsibly when he fired into the toilet cubicle.
“The respondent [Pistorius] knew there was someone in the toilet. He knew it. He fired four shots,” Nel said. He said the athlete, who was trained to handle firearms, fired four shots into the cubicle knowing it was small, and that the person inside had no way to escape.
“Certainly that deserves to be punished … It’s not someone who didn’t know where the person was.”
Too much mercy
Nel said the court showed “too much mercy” to Pistorius in sentencing him to five years for shooting dead Steenkamp.
“I say with utmost respect, too much mercy is shown,” Nel argued. “Perhaps the element of mercy was over-exaggerated.”
He said a long custodial sentence in his opinion would have been 10 years.
“We are appealing the acquittal on the conviction of murder,” Nel said.
The court had not taken all circumstantial evidence into account when it sentenced Pistorius, he argued.
Nel to present 1982 Seekoei case
During the application Nel said he would deal with a case that could present a hurdle for the state’s application, the Supreme Court of Appeal’s ruling in State vs Seekoei, which limited the state’s right of appeal.
The 1982 Seekoei case held that the state could not appeal if a conviction was made on a competent verdict. According to the Seekoei ruling, the state could only appeal an acquittal, not a conviction on a lesser charge.
Pistorius was initially charged with premeditated murder, but was convicted of culpable homicide. Nel said he received help from law lecturer Professor James Grant, who sat on his right on Tuesday.
Quoting case law, Nel referred the court to a verdict in the Constitutional Court that rendered the Seekoei judgment invalid. The state believed it could persuade the appeal court to hear the Pistorius matter.
Law applied correctly – Roux
Roux, for Pistorius, said the law was correctly applied in convicting and sentencing Pistorius.
“The problem is that the state does not like nor appreciate your factual findings and are saying they are incorrectly applied,” Roux said.
“You absolutely correctly said this is the law,” he told Masipa.
Roux said the state was not allowed to appeal based on factual findings the court made, but only on a point of law.
Roux said the argument that Pistorius’s sentence was light because he would only serve one sixth (10 months) of his sentence, was invalid because he would have to apply to be released into correctional supervision.
“It is incorrect to say it’s a light sentence, it’s not,” said Roux. “It is not for the state to get over the hurdles, as it put it, it is for the state to first get out of the starting block.”
Roux said it should be common cause that the state could not appeal facts. The argument that someone intended to shoot, but could not foresee it would kill a person, was a factual finding.
After listening to arguments from the prosecution and defence, Masipa adjourned the appeal hearing until Wednesday, saying: “I want to think about it.” – Sapa