Johannesburg - State prosecutor in the Oscar Pistorius case, Gerrie Nel, has insisted that his application to appeal Judge Thokozile Masipa's six-year murder sentence is not an attack on her authority, but rather a bid to allow another court to re-examine the case.
This, despite labelling her judgment as unduly sympathetic, shockingly lenient and a misdirection on more than 30 issues.
Meanwhile, Pistorius's defence team has insisted that the athlete's remorse over the killing of his model girlfriend, Reeva Steenkamp, was genuine.
Pistorius was arrested in February 2013 for shooting Steenkamp, four times through a closed door at his Pretoria East home, claiming he believed she was an intruder entering through the bathroom window.
The paralympian was convicted of murder in December last year after the Supreme Court of Appeal overturned his initial culpable homicide conviction.
He returned to the High Court in Pretoria in July where Masipa re-sentenced him to a six year prison term. Judge Thokozile Masipa was sympathetic towards Pistorius in her sentencing judgment, ultimately choosing to lessen the prescribed minimum 15 year sentence for the athlete, declaring she believed the athlete truly regretted his actions.
Shortly after, state prosecutor Gerrie Nel filed an application for leave to appeal Masipa’s most recent sentence, claiming six years was shockingly lenient considering Pistorius’ negligent actions. According to the State’s application, there were three aggravating major factors that Judge Masipa should have taken into account in her sentencing: the number of shots fired, that he had already formed the intention to shoot in his bedroom, before he had even approached the bathroom and lastly the Supreme Court of Appeal’s rejection of Pistorius’ claims of self-defence.
However, the State revealed 30 other points as to why the court “misdirected itself”, from overemphasising the forgiveness of the Steenkamp family - who during the sentencing proceedings earlier this year expressed their deep levels of sadness over the young model’s death – to Judge Masipa’s “undue sympathy” for Pistorius.
Meanwhile, Pistorius’s legal team, headed by Advocate Barry Roux, stated in their responding papers that they believed the State’s application was doomed to fail.
Roux argued the State had not taken into account Pistorius had already spent 12 months in jail when previously convicted of culpable homicide, as well as serving seven months under correctional supervision (house arrest).
“It must be borne in mind that correctional supervision is a form of detention,” Roux said.
Pistorius's defence further insisted that “if regard is had to the fact that – subject to good behaviour – an accused would usually be released on parole after serving about 60 percent of his sentence, the previous sentence period served, as well as the correctional supervision, constitute about a two-year effective imprisonment sentence already served by the accused”.
This effective eight-year sentence is anything but lenient, according to Roux.
On Friday morning, the application was heard at the High Court in Johannesburg.
Nel began by explaining the application was not an “impertinent” attack on Judge Masipa's sentence, but simply an acknowledgment that another court would likely have ruled differently.
However, in reiteration of his heads of argument, he said the court had given a “shockingly lenient” sentence, with the court having misdirected itself on numerous issues.
While the court acknowledged the seriousness of murder as a crime, Nel said it was too willing to take into account the circumstances surrounding the killing - namely Pistorius's vulnerability and fear - in mitigation of the sentence.
The athlete also had never gave an acceptable explanation for why he had shot four times at the suspected intruder.
Nel also told the court that Pistorius's remorse was untested, and questioned how genuinely the athlete regretted his actions.
He said while the court should have started her sentencing at the minimum 15 years, and deviating so heavily was also a misdirection of the court.
The prosecutor argued that the way in which Steenkamp died was “horrendous”, and that the black talon ammunition used was designed to do major damage to a human target.
Knowing what the ammunition could do, Pistorius still chose to use it, which Nel argued should have been an aggravating factor in the sentencing.
He said the public's incorrect perception that Pistorius and Steenkamp had an argument the night of the killing was irrelevant and not a mitigating factor, even though Judge Masipa said in her sentencing that such misinformation could not be ignored.
Nel argued the court choosing to focus on this was incorrect and another court would have likely ignored such outside factors.
He concluded by requesting permission to approach the Supreme Court of Appeal (SCA) to re-evaluate the sentence.
In his response on Friday morning, Roux said the State had waited 15 days before submitting the papers for the application, meaning Pistorius had been unsure of his fate for that period. He reiterated that Pistorius's remorse was genuine, with his emotions running high on the night of the incident and during the various court proceedings.
Roux returned to his argument that Pistorius had technically received an eight year sentence, and he had hoped the State would have accepted this was not so lenient.
“I understand judicial scrutiny... But enough is enough,” he said.
The defence lawyer also said the State had not taken into account the emotional difficulty Pistorius had by serving a prison sentence, then returning to the outside world and being sent back behind bars.
“What is it that the State wants (as a sentence) that is going to be acceptable?” he asked the court.
Roux disputed the State's argument that he had formed the intent to kill in his bedroom before the bathroom, as the athlete first shouted for the suspected intruder to get out of the house.
He said the state had tried to bring back the theory of dolus directus (or Pistorius allegedly directly intending to kill Steenkamp), but there was no court finding or merit within the case that proved this.
Roux said the State had suggested that the SCA, when it overturned the original culpable homicide conviction, had never ruled on Pistorius's remorsefulness or lack thereof.
He said the eight year sentence was appropriate for someone like Pistorius on the night of the shooting - anxious and vulnerable.
Roux called on the court to dismiss the application with costs.
The Star