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Oscar Pistorius Sentenced to Five Years in Prison

Update: The judge sentenced Oscar to five years in prison on the culpable homicide charge and imposed a three year suspended sentence on the firearm count. The sentences will run concurrently. He was taken into custody. Neither side indicated they were going to appeal, and there was no mention of bail pending appeal or a delay to put his affairs in order. Oscar sat by himself throughout the sentencing, and did not display any emotion at the sentence. I didn't see any interaction between Oscar and his lawyer during the proceeding or after.

A summary of the judge's reasoning is below (from my notes this time, not tweets.)[More...]

She begins with saying the sentencing decision is hers alone. The fact-finding assessors who have been with her during the trial do not participate.

The factors to be considered at sentencing are the nature and seriousness of offenses, the accusedís personal circumstances and the interests of society

The purposes of sentencing are retribution, deterrence, punishment and rehabilitation

There may be more than one appropriate sentence in a case. Sentencing is a subjective process. It is an imprecise and imperfect procedure.

She will address mitigation and aggravating circumstances. There were four defense witnesses in mitigation.

Oscarís psychologist testified she conducted group and individual trauma therapy with Oscar. He was diagnosed with PTSD and depression. She said Oscar had lost his love relationship, his moral and professional reputation, his friends and career.

A probation officer recommended correctional supervision and house arrest, followed by community service and various treatment programs. He or she also opined Oscar would be an appropriate candidate for supervision and it would be easy to monitor him at his uncleís home.

Oscarís manager testified as to his career accomplishments. He said prior to the incident he was a global sporting icon who gave his time and money to various causes. He had a lot of opportunities in the future, and now he has none.

As to the stateís witnesses: A cousin of the deceased testified to her and the familyís feeling of loss. She met Oscar once, about a month before the incident.

A Correctional Services representative called by the State testified that South Africaís prisons have made progress. He has visited jails in other countries and said SAís jails were comparative. They can accommodate any kind of need.

As to Oscarís personal circumstances: He is 27 years old, and a double amputee. He lives with his uncle, is not employed, has no income and no property. He sold his property during the trial. He has no prior convictions. His parents divorced when he was 6. He was raised by his mom who died when he was 15. He was a born with a congenital defect and at age 11 months, underwent an amputation below his knees

The judge did not believe the defense witness Ms. Maringa (sp) who testified about the conditions of South African prisons. She was not credible and her testimony was not helpful. Her information was outdated. She says the state was correct in calling her uninformed and sketchy. On the other hand, she was impressed by the correctional services witness for the state. He said SAís prisons were not perfect but more progressive than they used to be. She found his conclusions true and reliable. Sheís satisfied with his statement that SA prisons can handle all types of disability

The judge says if an inmate feels he is being mistreated in prison, he can ask the court for redress.

She refers to the defense statements that Oscar needs treatment for trauma and depression and says medical assistance is available in prison, and inmates are allowed be treated by their own doctor. She agrees with the correctional services witness that Oscar will not present an insurmountable challenge to the prison system.

She analogizes Oscarís situation to a pregnant woman and in the next sentence says there should not one law for the poor and disadvantaged and one for the rich. (I don't get the first analogy, which seemed to be that because pregnant women go to jail, so should someone with no legs, and the rich/poor analogy made no sense, considering she found Oscar to be both broke and disabled.)

She thinks there has been an overemphasis by the defense on his vulnerability. She finds he has excellent coping skills. Thanks to his mother, he rarely thought himself as disabled. He competed against able bodied persons.

The correct approach is to balance Oscarís personal circumstances with the interest of society. She encompasses the deceasedís familyís views in the interests of society category. As to Oscarís circumstances, she finds his contributions to society, both in time and money, have been ďenormous.Ē He changed the general publicís perceptions of disabled persons. She says this impact cannot be ignored but must be put in perspective.

On the seriousness of offenses, she finds both very serious. She says counsel for the state correctly said Oscar acted with gross negligence bordering on dolus. He was negligent because he shot four times. He said he would have shot higher if he intended to kill. He knew the toilet was small and there was no escape for the person behind the door. She says this is very aggravating.

But Oscar is a first offender and remorseful. She accepts that he has attempted to apologize to the deceasedís family privately but they were not ready to hear it. She accepts that his conduct after the incident showed he wanted the deceased to live.

She rejects the stateís argument that because she took his disability into account in rendering the verdict, she cannot take it into account at sentencing. She says Oscarís vulnerability is part of his personal circumstances.

She disagrees with the defense that Oscar has also become a victim, although she agrees the negative media can affect his reputation, regardless of whether he follows what the media is saying.

She says the interests of society demand those who commit crimes be punished and punished severely, but there is a difference between what some in society want and what is in the public interest. Courts must make the distinction between punishment and vengeance. Fortunately, the SA Constitution applies to everyone, including offenders.

She then says retribution is not the same as vengeance. If sentences are too lenient, people may take the law into their own hands and the administration of justice will fall into disrepute.

She acknowledges the loss of life cannot be reversed, and says hopefully this sentence will provide some closure for family and all concerned.

She says ďIn conclusionĒ, she must assess the degree of blameworthiness in committing the negligent act and the extent of deviation from norms of reasonable conduct. She refers to cases the defense submitted and says none are on point. She then spends a very long time quoting the facts and sentence of a case called Voster (No. 125, 2009) which sounds very similar. Voster got a 3 year suspended sentence. But she says itís different because Oscar, unlike Voster, knew someone was behind the door, Voster only fired one shot and aimed above the door while Oscar fired four shots into the door. She said Oscarís aim was to shoot the intruder.

She cites another case and again says itís not the same.

She says a suspended sentence is not appropriate and a non custodial sentence would send a wrong message. But a long sentence would be inappropriate because it would defeat rehabilitation and Oscarís prospect of becoming a productive member of society.

She then addresses the firearms charge. She says no one was hurt, and although it is serious, she does not believe his degree of negligence warrants prison on this count.

She asks Oscar to stand. He does (by himself, his lawyer remains at counsel table). She sentences him to five years in prison on the culpable homicide charge and imposes a three year suspended sentence on the firearms charge, to run concurrently (served at the same time.)

She asks if either side has anything further. The state says something about the citation to the firearms statute but has nothing else. The defense has nothing. Court adjourns. An officer comes and takes Oscar out of the courtroom.

Just a few comments: She seemed to have almost a patriotic interest in portraying South Africa's prisons in a positive light. She pulverized the defense expert on the topic, more so than any other witness at trial or sentencing that I can recall. She agreed with the prosecutor today that Oscar's negligence was "reckless" (not just negligent -- I don't recall her doing so before today.) In her verdict, she said the state failed to prove Oscar intended to kill anyone, and today she said he was aware he was shooting at someone and that they would have no ability to escape. She describes Oscar as broke and unemployed and then says there can't be different outcomes for the rich and the poor, obviously putting him in with the privileged class. She says that what members of society think is an appropriate sentence is not the same thing as the best interests of society and as a judge she has to ignore it. Then she endorses, not once but twice, the specious claim by the prosecutor that if a sentence is lighter than the public wants, it may cause riots, and she should take that into account. On the gun count, she says it's a very serious offense, and then says no jail is warranted because (in effect) no one was hurt, so no big deal.

Personally, I think her sentence was in large part based on her belief that Oscar didn't tell the full truth when testifying at trial. She said she didn't find him credible when she delivered the verdict. Since she also said when reading her verdict that the state failed to prove the murder charge, and the state's case was mostly built on the theory Oscar lied, her verdict was a finding that the state failed to prove he lied. Since the state never proved he lied, she wasn't about to substitute her own judgment on that point today and use it as a reason for her prison sentence. Instead, she enhanced her verdict ruling to find he was reckless (not simply negligent), "bordering on dolus" (which she also rejected in her verdict) to arrive at her desired outcome and minimize the chance of being reversed on appeal. In other words, I think she decided he should get a five year sentence and then created acceptable reasons to justify it.

****

Oscar Pistorius' returns to court today at 9:30 am SA time (1:30 am MT. Judge Thokozile Masipa will read her sentencing decision. It is anticipated this will take one hour. She has a variety of options. Prison is not mandatory. The prosecutor asked for 10 years, while Oscar's lawyer asked for an alternative sentence of house arrest.

Oscar is not being sentenced for murder. He was acquitted on the murder charge and found guilty of culpable homicide, which is similar to criminally negligent homicide in the U.S. Culpable homicide is the act of causing death through negligence, without criminal intent.

He is also being sentenced for one count of negligent handling of a firearm (involving his holding a firearm that went off in a restaurant.) He was acquitted of two other firearm-related charges, one involving shooting a firearm through the sunroof of his vehicle and one pertaining to unlawful possession of ammunition.

According to journalists covering the trial, both sides can appeal the sentence. If Oscar appeals, he has to re-apply for bail. He's been on bail in this case for 18 months, since February, 2013.

Update: The judge is almost done. It's not looking good for Oscar.

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  • Display: Sort:
    He may be broke now, but he certainly was well (5.00 / 3) (#1)
    by ruffian on Tue Oct 21, 2014 at 05:38:39 AM EST
    off at the time of the shooting. All due to his own talents, I don't begrudge him that, but going into this proceeding 'justice for the rich' would have applied to him if the courts allowed.  But against him was the possibility of making an example of a celebrity, if the court allowed that.  

    Interesting that there were attempts to tell the judge what the prisons were like...I guess I assumed judges know the state of the prisons they are sending people to...but I am probably naive about that.

    She split the difference (none / 0) (#2)
    by jbindc on Tue Oct 21, 2014 at 07:31:42 AM EST
    The prosecutor wanted 10 years, the defense wanted community service and house arrest, so she gave him 5.  He's still probably only going to do 10 months in prison, and the remainder will be house arrest.

    The International Paralympic Committee said he won't be able to run at an event for 5 years, even if he is released early, which means he still may have some role to play with the organization in the future.

    Actually, she didn't split the difference. (none / 0) (#4)
    by Mr Natural on Tue Oct 21, 2014 at 10:08:46 AM EST
    Five years in a real prison is vastly more punitive than five years sitting on a sofa at home.

    Parent
    Since (none / 0) (#6)
    by jbindc on Tue Oct 21, 2014 at 10:44:44 AM EST
    As I said, the prosecutor wanted 10 years in prison and the defense wanted none, I'd say she split the difference.

    Parent
    I can't find fault with the sentence, (none / 0) (#3)
    by Reconstructionist on Tue Oct 21, 2014 at 08:48:33 AM EST

      or her rationales as summarized, even if I personally believe a sentence closer to the maximum would also be justifiable.

     One thing confused me and may be lost "in translation" even though she's speaking English.

     A)She said she didn't find him credible when she delivered the verdict.

      (B)Since she also said when reading her verdict that the state failed to prove the murder charge, and the state's case was mostly built on the theory Oscar lied, her verdict was a finding that the state failed to prove he lied. Since the state never proved he lied, she wasn't about to substitute her own judgment on that point today and use it as a reason for her prison sentence.

     As, in this case the judge was the finder of fact and charged with determining credibility, I have difficulty reconciling (A) with the bolded portion of (B).  If she believes he was not credible when testifying how is that different from state proving he lied? I could see finding a witness was untruthful at times during his testimony  but that the state failed to prove he was untruthful on certain critical points but as broadly phrased it is puzzling.

    I also don't quite get "substituting her own judgment" in a case where she is the only fact-finder involved. A judge not substituting her judgment for a contrary determination reached by a jury is one thing , but here she made every determination.

    Instead, she enhanced her verdict ruling to find he was reckless (not simply negligent), "bordering on dolus" (which she also rejected in her verdict) to arrive at her desired outcome and minimize the chance of being reversed on appeal

    That's a new word for me. I had to look it up. A general definition:

    Guile; de- ceitfulness; malicious fraud. A fraudulent addressor trick used to deceive some one; a fraud. Dig. 4, 3, 1. Any subtle contrivance bywords or acts with a design to circumvent. 2 Kent, Comm. 560; Code, 2, 21.Such acts or omissions as operate as a deception upon the other party, or violatethe just confidence reposed by hiin, whether there be a deceitful intent {mains animus)or not Poth. Traite de D6pot, nn. 23, 27; Story, Bailm. S 20a; 2 Kent, Comm. 506, note. Fraud, willfulness, or intentionality. In that use It is opposed to culpa, which is negligence merely, In greater or less degree. The policy of the law may sometimestreat extreme culpa as if it were dolus, upon the maxim culpa dolo comparatur. A person is always liable for dolus producing damage, but not always for culpa producing damage, even though extreme, e. g

    Law Dictionary: What is DOLUS? definition of DOLUS (Black's Law Dictionary)

    A more specific discussion from  South Africa:

    Intent can occur in three forms: dolus directus, dolus indirectus and dolus eventualis.

    "Intent in the form of dolus eventualis or legal intention, which is present when the perpetrator objectively foresees the possibility of his act causing death and persists regardless of the consequences, suffices to find someone guilty of murder.
    The South African Court of Appeal held that mens rea in the form of dolus eventualis is an elastic concept. It can range from bordering on negligence (culpa) on the one hand to dolus directus on the other. However, the test always remains whether the accused person subjectively foresaw the possibility of the death of the deceased and associated himself therewith.1

    Dolus eventualis is sometimes said to be the criminal law equivalent to the tort concept of gross negligence.
    "Dolus directus, on the other hand, known as intention in its ordinary grammatical sense, is present when the accused's aim and object is to bring about the unlawful consequence, even should the chance of its resulting be small."

    He got off easy (none / 0) (#5)
    by Dadler on Tue Oct 21, 2014 at 10:37:31 AM EST
    He killed someone, negligently. And we all know, deep down, it was assuredly murder. Spare me the bullsh*t. He got off light. End of story. Just like abusers and violent sacks of crap get off every day. Nice to be rich.

    I repeat: nice to be rich.

    No Oscar for Oscar (none / 0) (#7)
    by Mr Natural on Tue Oct 21, 2014 at 11:12:20 AM EST
    Overindulgence tipped his performance from pathos into bathos.

    In an ideal world what we feel we know would be determined by what we can prove.


    Parent

    Guardian Op-Ed: Oscar should not go to jail (none / 0) (#8)
    by Mr Natural on Tue Oct 21, 2014 at 11:23:42 AM EST
    Moving down the road to penal reform can hardly begin with a privileged celebrity. But to ask, again and again in such cases, what sensible purpose comes from imprisonment, might at least encourage debate. This month alone the British parliament indulged its regular urge to "get tough", with a demand for longer sentences for knife crime, gun crime, fraud and even fly-tipping. This is not mature legislating but kneejerk retaliation. It is back to the days of an eye for an eye.

    - Simon Jenkins