Pretoria - The six year jail sentence imposed on Oscar Pistorius is shockingly lenient to a point where it has the effect of trivialising this serious offence. The facts of this case demand the imposition of the minimum sentence of 15 years imprisonment.
This is according to Supreme Court of Appeal in Bloemfontein Justice Willie Seriti, who on Friday handed down the judgment in which Pistorius’s jail term was more than doubled.
Justice Seriti said it was the unanimous finding of all five justices who heard the State’s appeal against the six-year-jail term, that he should have received the maximum penalty - 15 years.
The court, however, took into consideration that Pistorius had already spend a 12 month stint in jail on the previous conviction of culpable homicide, which was also replaced by the SCA with murder. The court also considered the seven months on which he was out on correctional supervision and concluded that he should thus now serve 13 years and five months in jail.
Friday was the second time in which the SCA overturned a finding by trial Judge Thokozile Masipa, who presided over Pistorius’s murder trial. She convicted him of murder in September 2014 for the Valentine’s Day 2013 murder of his model girlfriend Reeva Steenkamp.
She sentenced him to five years imprisonment a month later, but this was in terms of a provision in the Criminal Procedure Act which determined that he could only serve 10 months in jail before he was released on correctional supervision - essentially house arrest.
Aggrieved by this verdict the State turned to the SCA, which in December 2015 replaced the culpable homicide conviction with one of murder.
The matter was referred back to Judge Masipa for sentencing. On July 6 last year, she found there were mitigating factors to deviate from the prescribed 15 year jail term and she sentenced him to six years.
Further aggrieved with this, the State once again turned to the SCA to appeal what it deemed a shockingly lenient sentence - a sentiment shared by the justices.
Justice Seriti, who wrote the judgement, said it is common cause that Pistorius was born with a congenital abnormality affecting his legs, which he, before his first birthday, had to have surgically amputated. He had to rely on prosthesis as a result.
It is also common cause that he shot and killed Reeva in the early hours of February 14, 2013, at his then luxury Pretoria East home. The facts giving rise to the tragic incident was that Reeva had spent the night at Pistorius’s home. In the early hours of the morning he heard the sound of a window opening in the bathroom.
Upon hearing the sound of a window opening he thought that there was an intruder who had entered the house through the bathroom window. He went back to his bedroom and retrieved his 9 mm pistol from where he kept it under the bed. Armed with his pistol and without his prosthetic legs he went towards the bathroom. He peeped in the bathroom and noticed that there was no one in the bathroom itself but that the toilet door was closed.
The toilet cubicle is very small. He heard a noise emanating from inside the toilet and he immediately fired four shots at the door. After realising that Reeva was not in the bedroom, he broke open the toilet door and found her slumped with her weight on the toilet bowl.
Justice Seriti said the evidence shows that after fatally shooting Reeva, Pistorius took certain steps to try and save her life. According to the evidence of a police ballistics expert, the firearm in question was specifically designed for the purpose of self-defence.
The ammunition would penetrate through a wooden door without disintegrating but would mushroom on striking a soft, moist target such as human flesh, causing devastating wounds to any person who might be struck by it.
The expert testified that Reeva must have been standing behind the door when she was first shot and then collapsed down towards the toilet bowl.
Justice Seriti said there were various contradictions in Pistorius’s evidence as to why he shot at the toilet door. “One really does not know what his explanation is for having fired the fatal shots… He never offered an acceptable explanation for having done so.”
Justice Seriti pointed out that before Judge Masipa resentenced Pistorius to six years for murder, the State called witnesses to give evidence in aggravation of sentence. Pistorius, however, chose not to testify in mitigation of sentence.
“This, while the SCA said one really does not know what his explanation is for having fired the fatal shots,” Justice Seriti said.
At the time Judge Masipa warned Pistorius that to deviate from the 15 years mandatory sentence, the court must find mitigating circumstances.
Judge Masipa, however, did find mitigating factors, such as that Pistorius did believe there was an intruder in his house and that he was vulnerable without his prosthetics.
Judge Masipa at the time also noted that Pistorius tried to ask Reeva’s parents, June and Barry Steenkamp, for their forgiveness. This, she said demonstrated that he was genuinely remorseful for what he had done.
But Justice Seriti said he found it difficult to accept that Pistorius was genuinely remorseful. “He failed to explain why he fired the fatal shots… He failed to take the court fully into his confidence. To my mind the attempt by the respondent to apologise to the deceased’s family does not demonstrate any genuine remorse on his part.”
The justice said Pistorius, before being sentenced for the second time, had the opportunity to play open cards, yet he did not.
“It is clear that he is unable to appreciate the crime he has committed... He does not appreciate the gravity of his actions.”
Justice Seriti was of the opinion that Judge Masipa over emphasised Pistorius’s personal circumstances when she sentenced him. He said she seemed to have given rehabilitation undue weight, as against the other purposes of punishment of prevention, deterrence and retribution.
“I am of the view that there are no substantial and compelling circumstances which can justify the departure from the prescribed minimum sentence of 15 years for murder in the circumstances,” he said.
The Steenkamp family, through their lawyer Taina Koen, meanwhile said they were happy that justice was done, but nothing would bring Reeva back.
“They grieve for her everyday and the only thing that is getting them going, is the Reeva Steenkamp Foundation,” Koen said. This is a foundation which assists abused women, which was a subject close to Reeva’s heart.