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Oscar vs Nel: round 2

Oscar Pistorius holds the hands of family members after being sentenced at the North Gauteng High Court in Pretoria. File picture: Herman Verwey

Oscar Pistorius holds the hands of family members after being sentenced at the North Gauteng High Court in Pretoria. File picture: Herman Verwey

Published Nov 5, 2014

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Pretoria - While Oscar Pistorius is facing a bleak Christmas in jail, this may not be the end of his woes. The National Prosecuting Authority (NPA), which has tried to put him behind bars for at least 10 years, has filed papers saying he should have been convicted of murder and received a heavier sentence.

Judge Thokozile Masipa erred in sentencing Pistorius to a five-year jail sentence in terms of an act in which he only had to serve 10 months behind bars before he is considered for release on correctional supervision, the prosecution submitted.

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Prosecutor Gerrie Nel, in papers filed at the Gauteng Provincial Division of the High Court in Pretoria – exactly two weeks after sentencing – also indicated he would appeal on questions of law against the culpable homicide conviction. In his opinion, it should have been murder.

On Pistorius’s sentence, Nel said the punishment was shockingly light, inappropriate and would not have been imposed by a reasonable court.

The judge failed to consider that, having been convicted of culpable homicide, Pistorius acted with gross negligence when he killed his girlfriend Reeva Steenkamp on Valentine’s Day last year, Nel said.

The athlete’s conduct bordered on dolus eventualis – where he should have foreseen that he could kill someone – and he fired not one, but four shots. He used a lethal weapon loaded with Black Talon ammunition and shot through a locked door into a small toilet cubicle, from where there was no room for escape, Nel said. The judge should also have considered that Pistorius was trained in the use of firearms.

Nel is of the opinion that the judge erred in over-emphasising the personal circumstances of Pistorius and the fact that he suffered from post traumatic stress disorder, was anxious and seemed remorseful. She did not place enough emphasis on the “horrendous” manner in which Steen-kamp died, coupled with the gruesome injuries she suffered when he shot her.

The judge also erred in overemphasising rehabilitation and reformation at the expense of retribution, he said.

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“The sentence is shockingly inappropriate for the accused who armed himself with the intention to shoot, walked to the bathroom and fired four shots, knowing that there was a human behind the door of the toilet.

“We will argue that the sentence is inappropriate and shockingly light for someone who killed an innocent person with gross negligence…”

Nel added that another court may overturn the sentence on appeal.

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Asking for leave to appeal against the culpable homicide verdict (on facts in law), Nel said the facts in the case pointed to murder and the judge erred in law when she came to her verdict.

Judge Masipa found Pistorius had fired four shots into the small cubicle where there was no room for escape, Nel said.

According to Nel the judge dismissed circumstantial evidence as “aspects which do not make sense”, without rejecting this evidence.

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“The court did not discuss, accept or reject the circumstantial evidence rendering the version of the accused impossible,” he submitted.

He also noted Pistorius had “a plethora of defences”, that the court found he was a very poor witness and that his defences were mutually destructive. Nel said the question should be raised whether the court could “pick” a defence for Pistorius or simply should have rejected his evidence on the finding that he was untruthful and had more than one defence. Another court should thus consider the correctness of the court’s application of the dolus eventualis principles. Nel also asked for leave to appeal against the other firearm related charges on which Pistorius was acquitted. No date has yet been set to hear the application.

Nel indicated he would ask for leave to appeal against the judgment before the Supreme Court of Appeal in Bloemfontein.

Pretoria News

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