Murder, Inc: NPA appeals Oscar’s ‘shockingly lenient’ six-year sentence

The NPA on Thursday said it had carefully considered the sentence imposed on Pistorius by Judge Thokozile Masipa two weeks ago and would file an application for leave to appeal.

“We respectfully submit that the sentence of six years imprisonment, in all the circumstances, is disproportionate to the crime of murder committed, in casu, that is to say, shockingly too lenient, and has accordingly resulted in an injustice and has the potential to bring the administration of justice into disrepute,” said the NPA in a statement.

“We hope that this appeal will also clarify further the principles of sentencing, particularly in crime categories for which there are prescribed minimum sentences ordained by legislation, notwithstanding the fact that a judicial officer has a discretion to deviate from the minimum sentence after considering compelling circumstances,” it continued. The NPA said it would file the appeal papers on Thursday.

On 6 July, Masipa deviated significantly from the 15-year minimum prescribed sentence for murder, explaining how the case’s mitigating factors outweighed the aggravating factors. The judge acknowledged the role of public perception in sentencing but said it was not a substitute for the court’s position as an independent arbiter.

Pistorius was taken to Kgosi Mampuru II prison after the leaving the courtroom. If Masipa’s sentence stands, he is eligible for parole in three years after serving half of his sentence.

“I was hoping they would appeal. I think that’s the right thing,” said Advocate James Grant, who has acted in high-profile cases and is a former professor of criminal law at Wits. As he is litigating on the case, Grant could not elaborate, but added, “I think it’s the right thing to do, irrespective of whether they win or not. They had to do it.”

Attorney and legal analyst Tyrone Maseko said it was likely the state would appeal after the sentence fell short of the 15 years it argued for. “The NPA pretty much didn’t have a choice. They went for 15,” said Maseko. “They might lose, they might win at the Supreme Court of Appeal, but they have to try.”

Predicting what might happen is difficult, said Maseko. The SCA cannot ask whether Masipa’s sentence was wrong or right, or what it would have given Pistorius. The court must decide whether the sentence is “shockingly inappropriate”, said Maseko, and it’s hard to predict whether the court will go that far.

Women’s rights organisations welcomed the NPA’s decision to appeal. The Stop Gender Violence Campaign, a coalition of 36 civil society organisations, which had condemned the six-year sentence, on Thursday welcomed the appeal. Speaking for the campaign, Marike Keller, from Sonke Gender Justice, said, “The previous sentence was definitely not enough for murder.” Pistorius needs to receive a sentence that reflects his crime and shows the justice system is serious about crimes against women, Keller added.

After the previous sentence, the campaign said, “The case presented an opportunity for Masipa to comment on and condemn the prevalence of gender-based violence in South Africa. Her explicit failure to do so – both verbally and implicitly through her lenient sentence – sidelined the issue of gender violence and the victims thereof. Women who experience abuse on a daily basis in South Africa have been let down by the judgment.”

The ANC Women’s League on Thursday said the decision to appeal was necessary to restore the public’s faith in the judiciary and continue to stand up against violence against women and children. “We welcome the decision by the state to appeal the sentence because we were dissatisfied by the minimum sentence given. We saw it as very lenient for murder,” said league spokeswoman Toko Xasa.

While arguing over sentencing, the defence’s Advocate Barry Roux called for a non-custodial sentence; prosecutor Gerrie Nel said the Olympian should get the minimum 15 years in prison.

Weighing up her decision, Masipa said Pistorius was trained in the use of firearms and shot four high-calibre rounds into a small space, killing Steenkamp, who Pistorius thought was an intruder, which Masipa accepted. The Steenkamp family would never heal from the pain, she said. But the judge also said Pistorius felt vulnerable at the time, had tried to save Steenkamp, and had shown remorse.

“I am of the view that a long term of imprisonment will not serve justice in this matter,” said Masipa.

In 2014, she sentenced Pistorius to five years in prison, of which he served one, after finding him guilty of culpable homicide. The Supreme Court of Appeal overturned the charge to murder and said Masipa had made a “fundamental error”.

Once again, Pistorius’ fate will be determined by the SCA. In an application to the Constitutional Court to have the appeal court’s murder verdict overturned, his lawyers claimed the SCA had discriminated against Pistorius on the grounds of his disability and vulnerability by rejecting his argument of putative private defence, which his lawyers said amounted to the SCA exceeding its powers by reconsidering a factual finding of the court. The Constitutional Court denied the attempt to have the murder conviction overruled. DM

Photo: South African Paralympic athlete Oscar Pistorius sits in the dock during his trial at the high court in Pretoria, South Africa, 15 April 2014. EPA/ALON SKUY / POOL