This week Judge Thokozile Masipa sentenced Oscar Pistorius to six years in prison for murdering Reeva Steenkamp concluding that “a long term in prison will not serve justice.” This relatively light sentence was understandably met with significant public outrage.
Indeed, many have been asking this question: how on earth could Pistorius be sentenced to a mere six years in prison (and likely out in two years) for intentionally murdering another human being?
South African Sentencing Laws
South African law calls for a minimum prison sentence of 15 years for a person convicted of murder. That being said, South African trial judges have broad discretionary powers when it comes to sentencing. As with other jurisdictions, judges follow a set of sentencing principles that provide for the consideration of factors such as the gravity of the offense, the circumstances of the offender and the public interest.
And here’s the key in murder cases: South African legislation carves out an exception to mandatory minimum sentences. Specifically, judges can reduce jail time from the minimum 15 years if they are satisfied that “substantial and compelling circumstances” exist justifying the imposition of a lesser sentence.
Substantial and compelling circumstances represent something exceptional. For that reason, certain South African courts have reasoned that the wording in the legislation provides courts with little discretion to reduce a sentence, and furthermore, courts are bound by minimum sentences unless exceptional and unusual circumstances are present.
That being said, judges are still provided a wide ambit of discretion, and since the term “substantial and compelling circumstances” is not expressly defined by statute, judges have the latitude to interpret that wording as they see fit. That latitude has resulted in disparities in the application of the law, including in the Pistorus case.
Judge Masipa’s Flawed Sentencing of Pistorius
In reducing Pistorius’ jail time from 15 years to six years, Judge Masipa did indeed rely on substantial and compelling circumstances including his remorse, his potential for rehabilitation and his belief that Steenkamp was an intruder.
These reasons are nothing short of untenable, flimsy and frankly bewildering. It is not unusual for convicted felons to express remorse and a promise not to reoffend with a view to gaining favor with the court on sentencing. That by itself should simply not constitute grounds for a reduced sentence, and at the very least if it does, it does not warrant a reduction of 9 years of prison time.
As well, relying on Pistorius’ belief that Steenkamp was an intruder as a basis to reduce his jail time is flawed. Under South African law, it is murder if Pistorius intended to kill anyone, be it Steenkamp or the intruder. In fact when the Court of Appeal overturned Judge Masipa and found Pistorius guilty of murder, the reasoning was that he intended to kill someone that night. So to rely on his mistaken belief as a basis to reduce his jail time is to effectively set aside a fundamental legal principle.
As I mentioned, Judge Masipa was overturned by the Court of Appeal. She initially found Pistorius guilty of culpable homicide, which means Judge Masipa concluded he acted negligently when he killed Steenkamp and without intent. So by passing on the more severe charge of murder (which requires intent to kill), Judge Masipa concluded the shooting was an accident. In overturning Judge Masipa’s conviction of culpable homicide, Justice Lorimer Eric Leach of the Supreme Court of Appeal delivered the unanimous ruling on behalf of the five judges that make up the appeals court. In part, he tersely wrote that the “accused ought to have been found guilty of murder.”
The case was then sent back to Judge Masipa for sentencing. While Judge Masipa of course acknowledged the Court of Appeals’ murder ruling, her sentence was effectively aligned with her initial finding of culpable homicide when she initially sentenced Pistorius to five years in prison.
Ultimately, there is little difference between five and six years as either way the former Olympian will be out of prison in about two years.
Appealing Prison Term
The prosecution, led by Gerrie Nell, has the right to appeal the prison sentence within 14 days. Expect to see an appeal. Don’t forget that Nell appealed the initial conviction of culpable homicide, which was accompanied by a five year prison sentence.
So if five years was unacceptable, six years should be too. Nell will argue that the substantial and compelling reasons relied upon by Judge Masipa do not justify a reduced prison sentence.
Barry Rioux, lead lawyer for Pistorius, has already indicated he will not appeal the sentence. This is a wise move as an appeal could well backfire as the Court of Appeal has the discretion to increase Pistorius’ the jail time.
Pistorius as a “Fallen Hero”
Substantive merits aside, the tone of Judge Masipa’s ruling was inappropriate. She described Pistorius as a “fallen hero”, adding that he lost “his career”, “is ruined financially” and that “having taken a human life in the way he did, he cannot be at peace.”
This language is wholly inappropriate given the circumstances. A person who murders another is expected to face financial, professional and emotional ruin and this should not be relied upon to excuse a lighter sentence.
Ultimately, Judge Masipa’s ruling is disheartening and deeply disappointing. It sends the wrong message, namely, that violence against women will be tolerated. Indeed, if you are a woman in South Africa today, you don’t feel any safer.
By: Eric Macramalla (Forbes).
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