Defence advocate Barry Roux is earning his fees. First, he got Pistorius off on the lesser charge of premeditated murder. Now, he's imploring the North Gauteng High Court not to send the former athlete to prison. Prosecutor Gerrie Nel, however, wants the former athlete behind bars for at least 10 years. The sentence will be delivered on Tuesday and will largely depend on what the society wants versus what's best for society. By GREG NICOLSON.
Many people are still dealing with the fact that Pistorius killed girlfriend Reeva Steenkamp in circumstances hard to believe, but got off on culpable homicide after the state failed to prove dolus eventualis. He had a gun, went towards perceived danger without verifying where Steenkamp was, and pumped four lethal Black Talon bullets through a locked door into a small toilet.
On Friday, the fifth day of the sentencing process, Roux argued that Judge Thokozile Masipa should follow the spirit of ubuntu and keep Pistorius out of jail. Imploring the court, he said Pistorius is broken, acted while vulnerable and anxious, has shown remorse, can still be of benefit to society, and wouldn’t be able to receive the appropriate medical care in prison.
Let’s look at the facts, said Roux. The judgment found Pistorius couldn’t foresee the death of Steenkamp and although there was a high degree of negligence he felt vulnerable when he thought there was an intruder. He acted without malice or conscious unlawfulness. Roux compared Pistorius’s culpable homicide case to Molemo “Jub Jub” Maarohanye’s. “They consciously acted unlawfully… They knew they could not race cars in the street,” said Roux. “The accused did not consciously act unlawfully,” he told the court.
The advocate explained how Pistorius has been subjected to “unprecedented”, intense public scrutiny, which Roux said was based on false information. Throughout the 18 months since Pistorius was arrested he has been labelled a cold blooded murderer by a vindictive society. “No punishment… can be worse than the last 18 months,” he told the court. Pistorius is broke, has lost his reputation and friends, suffers from post-traumatic stress disorder and depression. He was subjected to denigration, ridicule and blame across the world. Roux tried to blame false media reports, like that a cricket bat was used to crush Steenkamp’s skull, had unfairly punished Pistorius but Masipa dismissed his criticism of the media.
Roux said Pistorius suffered “permanent, excruciating pain that will never go away”. His remorse was clear in his displays of emotion, paying the Steenkamp family R6,000 a month, and putting R375,000 aside for them without conditions. The defence referred to multiple witnesses who said the athlete had shown remorse and was upset that he couldn’t do more because of the media pressure and feelings from the Steenkamps.
Roux explained the recent sentencing focus on avoiding imprisonment and appealed to Masipa to apply the spirit of ubuntu. Society will call for the death penalty, he said, but the court must act in society’s interests. “What happened in this matter is this – there was an accused and a victim and very shortly after the accused became the victim,” claimed Roux. Society will always call for jail time. “Be careful that you don’t become trapped in this mindset. Just sit back and think,” Roux told Masipa.
“It can never be a suitable punishment, locking him up in a hospital,” said Roux of the option of sending Pistorius to prison where he will most likely be kept in the hospital ward. Multiple witnesses have recommended he be sentenced to three years correctional supervision, with house arrest and other conditions like 16 hours, or more said Roux, community service. At his uncle Arnold’s home, Pistorius could get the necessary physical and psychological care. “It’s a real punishment, but it’s restorative,” Roux argued.
It’s not necessary to spend long on the prosecution’s argument; it’s represents much of what the public thinks. Nel said society would only be happy if Pistorius is locked up for at least 10 years. Focusing on the high degree of negligence, the damaged caused to the Steenkamp family and what’s in society’s interests, Nel cut through Roux’s argument. Pistorius brutally killed Steenkamp, fired no warning shots, and hasn’t shown sufficient remorse, he said. The killer should go to jail.
It’s time, Nel said, to “sit back and think what happened to the deceased”. She but was killed violently. The emotional testimony from Kim Martins, Steenkamp’s cousin, “goes beyond that of her family’s voice and must be seen as representing society”. Reeva’s family had to hear that their daughter was killed violently and the court must take into account that killing someone is the most serious offence in the justice system.
“The courts owe it to society to do what they can to prevent anyone else going through the trauma,” said Nel. If Pistorius doesn’t go to jail, people may lose faith in the justice system and take the law into their own hands, he added.
Pistorius doesn’t deserve mercy, said Nel. He tried to give money to the Steenkamp family to reach a settlement and avoid jail, argued Nel, and Pistorius has never admitted to being sorry for shooting the bullets through the door, only for killing Reeva. Who cares if the athlete’s lucritive career was halted? That’s not reason for a soft sentence. If Pistorius gets correctional supervision, he’ll be able to live a largely normal life in luxury, said Nel. “Weighed up against what he did, my lady, it’s shockingly disproportionate… This can never be one of those cases of correctional supervision.”
Pistorius’s disability is a non-factor, said Nel. He can cope in prison; the court’s heard such evidence. Essentially, the argument is about restorative versus rehabilitative justice, the community’s demands versus the community’s interests, and the type of justice one gets with money, fame and a high-priced legal team. DM