/ 21 July 2016

Judge Masipa had “maudlin sympathy” for Oscar Pistorius – NPA’s Gerrie Nel

Judge Masipa Had Maudlin

The National Prosecuting Authority (NPA) has filed court papers setting out the reasons for its appeal against the “shockingly inappropriate” six year sentence handed down to Oscar Pistorius on July 6.

Judge Thokozile Masipa sentenced the former paralympian for a second time after his initial conviction of culpable homicide was overturned by the Supreme Court of Appeal and converted to murder last year.

In the original trial, Pistorius was convicted of culpable homicide for killing his model girlfriend at his home on Valentine’s Day, 2013. Masipa sentenced him to five years, and he served one year of that sentence.

When she was tasked with re-sentencing him for murder, she found that the mitigating factors in the case outweighed the aggravating factors.

In papers filed on Thursday, the NPA states that the court “misdirected itself in finding that the aggravating factors in casu are outweighed by the mitigating factors”.

It listed the aggravating factors identified by the court which included the fact that Pistorius used a lethal weapon and that he had fired four shots into the toilet door through which Steenkamp was fatally shot (not only one shot), knowing there was someone behind it with no room to escape.

It further listed the mitigating factors found by the court, which included the fact that Pistorius approached the bathroom in the belief that an intruder had entered his house, that he felt vulnerable without his prosthetic legs, that he tried to save Steenkamp’s life, and was genuinely remorseful.

State prosecutor Gerrie Nel contends that the court did not take into account three major aggravating factors:

He listed these as:

“1.It was in the bedroom that the accused had formed the intention to shoot and when he realised that there was someone behind the toilet door he fired four shots.

“2. The Supreme Court of Appeal as well as this Court rejected the defence that the accused acted in private defence or even putative private defence. Thus, there existed no justification for the accused’s actions.

“3. And perhaps the most important factor that the court failed to take into account is that the accused ‘fired four shots through the door. And he never offered an acceptable explanation for having done so’.”

Nel further argues that “the Court misdirected itself in not focusing on the fact that the accused’s actions in firing four shots at a human being behind a closed toilet door was no mistake”.

The NPA also contends that the question of minimum sentencing as prescribed by legislation should be considered.

Nel argued that the Court “misdirected itself in under-emphasising the trite principle that when sentencing in terms of the minimum sentence legislation, a court is not given a ‘clean slate’ on which to inscribe whatever sentence it thinks fit or appropriate, but the starting point in a matter such as this is the prescribed minimum sentences ordained by the legislature”.

The papers further argue that Masipa over-emphasised Pistorius’s personal circumstances particularly his disability and the fact that he felt “vulnerable” when he committed the crime while on his stumps.

Furthermore, the State argues that the Court had misdirected itself in having “maudlin sympathy” for the accused.

The arguments also highlight Masipa’s under-emphasis of a “victim-centred” sentence in which the impact on the victim’s family is taken into account.

Nel contends that: “The Court, with respect, misdirected itself in finding that the accused has genuine remorse, whereas the Supreme Court of Appeal made it patently and repeatedly clear that “one really does not know what his explanation is for having fired the fatal shots”, which the accused again in sentencing afresh proceedings failed to explain to the Court, thereby failing to take the Court into his confidence”.

He emphasised Pistorius’s failure to show remorse for his actions and the fact that “he intended (dolus eventualis) to kill a human being”.

Calling the sentence “shockingly inappropriate”, he said it attracted the epithets “startling” and “disturbingly inappropriate”.

In conclusion the State argues that the sentence did not adequately reflect the seriousness of the crime of murder and the outrage of the public.

Instead, it had “resulted in an injustice and has the potential to bring the administration of justice into disrepute”. – African News Agency (ANA)