Insights into litigation, sports law, media and legal culture

Method to the madness: Sentencing Oscar Pistorius

Judge Thokozile Masipa reads her judgement during sentencing of paralympian Oscar Pistorius at the high court in Pretoria, on October 21, 2014. South Africa’s star athlete Pistorius was sentenced to five years imprisonment for the culpable homicide killing of his girlfriend Reeva Steenkamp and was also sentenced to three years, suspended for five years, for firing a pistol under a table at Tasha’s restaurant in Johannesburg in January 2013. (THEMBA HADEBE/AFP/Getty Images)

When you type “Pistorius not guilty” into your favourite search engine, the second option offered by the autocomplete function is “Pistorius not guilty joke”. This was presumably a response to Oscar Pistorius being cleared of murder on 12 September 2014 but found guilty of the lesser charge of culpable homicide.

So far, public reaction to Oscar Pistorius’ five-year prison sentence for culpable homicide appears more muted. Oscar Pistorius’ uncle, Arnold Pistorius, has himself asked the media to accept the verdict and to move forward.

The defence had called for three years’ house arrest and community service. The prosecution had called for a minimum 10 years in prison. The outcome appears to represent a middle ground.

As well as five years imprisonment for the first count of culpable homicide, Oscar Pistorius was given a three year sentence for a firearms charge, wholly suspended for five years.

The advocacy and emotive language inherent in an adversarial system is now gone.

 For some insight into the language used, refer to the word clouds published in the UK Telegraph highlighting the 100 most frequently used words by opposing Counsel in their closing sentencing submissions.   For instance, Barry Roux used words such as ‘anxiety’, ‘incident’, ‘Vorster’ (an applicable case), ‘society’, ‘punishment’. By contrast, Gerrie Nels’ most frequently used words were ‘toilet’, ‘door’, ‘person’ and ‘deceased’.

In its place is the clarity with which Judge Thokozile Masipa explained the process by which she arrived at her sentencing decision.

Judge Masipa said she could not please everyone. She described the process as subjective, and not a personality contest. She further stated that vengeance was not an appropriate consideration.

Much appears similar between Australia and South Africa in the court’s approach to sentencing. There are guidelines to assist this most difficult of tasks for a judge.

One starts by considering the maximum sentence for the particular crime. In the case at hand, for instance, culpable homicide carries no minimum sentence, but has a maximum 15 year jail sentence.

The law in Australia is that the judge must by a process of ‘instinctive synthesis’ consider a range of factors and arrive at an appropriate result.

First, one must consider similar current sentencing practices.  Secondly, one must consider parity between similar offenders. Aspects of this are similar to a numbers game. One can examine statistics to work out how many people are imprisoned for similar crimes, or receive non-custodial based orders such as Community Corrections Orders. In Victoria, Australia, suspended sentences have been recently abolished and house arrest is not available. This does limit the options.

Like in South Africa, vengeance also has no place in Victoria. In fact, the sentence must be proportionate and involve the least punitive measure to arrive at just punishment. A “crushing” term of imprisonment will likely be overturned on appeal.

What is just punishment? To arrive at this, the judge must consider things like the importance of denouncing the crime, of deterring others from doing it, of rehabilitating the offender and of protecting society.

Mitigating factors will be relevant, such as an early guilty plea. Equally, culpability must also be considered.

For more information about sentencing principles in Victoria, refer to the Sentencing Manual produced by the Judicial College.

Likewise, it has been reported that under South Africa’s sentencing guidelines, Judge Masipa must consider the seriousness of the offences and the personal circumstances of the offender, as well as public interest. Quite separate from public opinion, questions in the public interest include deterrence, rehabilitation, protection and retribution. Sound familiar?

Judge Thokozile Masipa further said that an appropriate sentence must be “fair and just, both to society and the accused“. A non-custodial sentence would send the wrong message to society, but a long sentence would also be inappropriate, not showing enough mercy.

That said, the need for confidence in the South African legal system was of particular focus throughout the trial, and was one of the reasons why the trial was publicized in the first place. See here for my previous blog post on this issue.

This issue reared its head again in Judge Masipa’s sentencing remarks. Referring to the high profile nature of the case, with the accused being one of South Africa’s most famous sportsmen and celebrities, she added: “It would be a sad day for this country, if there was an impression that there’s one law for the poor, and another for the rich and famous.”

If looking for further insight into Judge Masipa’s comments, Channel 4 and the Daily Maverick provide excellent reports.

Oscar Pistorius will now spend his first night at Kgosi Mampuru II prison. This prison is another emblem of South Africa’s commitment to justice. Mampuru II was reportedly a king or chief and rightful heir to the Bapedi tribe. He was hanged at the prison on 22 November 1883 for public violence and revolt (as well as the murder of a rival leader in the same year). The prison was named after him in 2013 as a symbol intended to encourage traditional leaders to help rebuild society and to help rewrite the country’s “distorted history”.

Time will tell how history judges Oscar Pistorius’ own story.

 

 

 

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