Pretoria - Pretoria High Court Judge Thokozile Masipa had “undue sympathy” for Oscar Pistorius, which resulted in her handing down a six-year jail sentence.
The sentence, according to prosecutor Gerrie Nel, was not only shockingly lenient, but also “startlingly” and “disturbingly inappropriate”.
Nel listed more than 30 points why he and his prosecution team believed that the judge misdirected herself when she re-sentenced Pistorius more than two weeks ago, for murder.
“The sentence of six years' imprisonment does not adequately reflect the seriousness of the crime of murder and the natural indignation and outrage of the public...
“It is shockingly lenient and has accordingly resulted in an injustice and has the potential to bring the administration of justice into disrepute,” Nel - also known as “Bulldog” - said in his application for leave to appeal.
On Thursday the application was served on Judge Masipa, who is now confronted with a second appeal since the start of the trial.
The Supreme Court of Appeal earlier overturned her culpable homicide conviction and replaced it with murder. The judge had to re-sentence the athlete accordingly.
The office of the judge acknowledged that it received the notice, but her registrar said the parties still had to agree on a date when the application for leave to appeal would be heard. While she this time has the option to turn down the application, it will be of little consequence, as the prosecution will then directly petition the Supreme Court for leave to appeal. The State confirmed that it would in any event ask that court to hear the appeal.
Legal experts said that the appeal court was expected to re-sentence Pistorius if it were to find that the judge was too lenient in meting out her sentence. They were, however, divided on his chances of receiving a heaver sentence.
Lawyer Julian Knight said the State did have a reasonable chance of scoring another victory. “They have an arguable case. The sentence may not be lenient regarding the special circumstances of Pistorius, but a sentence for murder - even on the doctrine of dolus eventualis - normally carries a far harsher sentence than six years.”
The news of a possible harsher sentence will be a blow for the Blade Runner, who is already serving his time at the hospital section of the Kgosi Mampuru II Correctional Centre in Pretoria.
Although he received six years, Knight said he stood a good chance to be out on parole after 18 months.
Veteran criminal advocate Johann Engelbrecht SC was of the opinion that the State was wasting its time. “I said from the start eight years were a suitable sentence. There is not much difference between eight and six years and no court will interfere with a sentence if it does not think the sentence is shockingly inappropriate.”
Professor Wium de Villiers, of the University of Pretoria's procedural law department, said while the State had a tough time ahead to convince the court, the sentence was shockingly lenient. He said an appeal had a reasonable chance of succeeding.
Nel was also confident that he would score another victory as he set out his reasons for a harsher sentence in a 20-page application.
He, among others, said the judge over-emphasised Pistorius’s disability and that she under-emphasised the pain and desperation Reeva Steenkamp had to endure when she was shot behind the toilet door in the early hours of Valentine’s Day 2013. He said to this day Pistorius had not presented a reasonable explanation as to why he fired the four shots.
While Reeva's father, Barry, said after Oscar’s re-sentencing that he did not want to return to court, family spokeswoman Tania Koen said they always supported Nel and his team’s fight for justice for Reeva.
“As they have no input in the decision of the State to appeal, they are focusing their energy on the official launch of the Reeva Rebecca Steenkamp Foundation on August 19. The day she was due to turn 33.” This is to educate abused women.
Anneliese Burgess, for the Pistorius family, said they would not comment at this stage.