Publications
Partners
More evidence of the effectiveness of our senior judges was the refusal of the Constitutional Court to consider the Oscar Pistorius latest appeal on the grounds that there was no chance that it could succeed. Bravo to them for refusing to waste public money and time on a fruitless venture!
Old 'whine' in new bottles
Now that the SCA’s corrections of Judge Masipa’s errors are unchallengeable, the conviction of murder stands. What now remains is his sentencing. The State wants at least 15 years, which is quite modest.
Taking into account the range and type of errors Judge Masipa made, as tactfully identified by the SCA, it would be highly unlikely for her to be asked to preside over the sentencing.
Read: Oscar 'upgraded' to murderer
Once again Roux will put old “whine” in new bottles and repeat the old excuses he’s tried so many times. We’ll hear more about how footless people should always be treated with special leniency. We’ll probably hear from carefully selected social workers and psychologists, but let’s pray they won’t call in the astounding Ms. Vergeer again.
Oscar has mentioned that he’s studying for a BSc business with law degree through the London School of Economics. There’s actually no such degree, but maybe he meant the BSc in management and law from the University of London, a course which can take 3 to 8 years – but time won't be an issue in jail.
Mitigation?
The basic factors the court should take into account in deciding on a sentence are the characteristics of the crime, the perpetrator, and public interest. It takes note of possible mitigating factors (leading to a lesser sentence) and aggravating factors (encouraging more severity).
The sentence must not be disproportionate to the crime, as was Masipa’s choice. As the Mikado sings in the Gilbert & Sullivan opera: “My object all sublime, I shall achieve in time: to let the punishment fit the crime.”
In a crime of violence, factors to consider should include the extent and cruelty of the method, the extent of the damage done to the victim, the character of the victim and whether they were helpless and unarmed, and so forth. The court must base their decision on who was the actual victim, not on whatever fantasy victim the perpetrator may claim he imagined he was facing. The degree of recklessness involved is highly significant.
Also relevant are the characteristics of the perpetrator. Here Roux will go into full prima donna mode: how can a lad without feet be expected to resist the urge to shoot people? Whether the criminal shows remorse is taken seriously and the court will have to be careful in assessing this. Roux will point out the moaning, retching and gnashing of teeth, even if that is really no actual evidence of remorse.
Read: Psychosis rarely linked to violent crime
Clearly Oscar deeply regretted what happened, but in terms of the impact on him and his life of fame and bling. He did, indeed, feel profoundly sorry for himself. The extent to which he felt remorse for the horrible death of Reeva is far from clear. He certainly didn’t protest when he received an improperly light sentence, and didn’t show any sign that he felt he deserved punishment at all – a slap on the wrist at most. Remorse is not the same as self-pity! And while you deny having committed murder, you cannot logically have remorse for having done so.
No significant anxiety
The defence can argue a number of mitigating factors. Age isn’t relevant here and his health and disability are utterly and totally irrelevant. A factor that may be taken seriously is the argument that this was a first offence. This is desperately naive. It might indeed be the first time a hypothetical person drove while drunk, or perhaps it was just the first time he got caught. In the case of some crimes, it may have just been the first opportunity for the perpetrator to do what they did. With murder, should we really treat someone more gently just because they haven’t murdered anyone before?
The diagnosis of anxiety disorder in this case is exceedingly shaky and could have been devastatingly challenged had the State bothered to call experts of its own to do so. There is no good evidence that any significant anxiety state existed before the crime, or had anything genuinely to do with causing it or explaining it.
Read: Your anxiety questions answered
As regards the public interest, courts place far too much emphasis on naive beliefs in rehabilitation, despite a conspicuous lack of good evidence that this happens with any regularity and based on the opinions of probation officers who benefit from a steady stream of clients. They’re more convincing on the rare occasions when they advise against placing someone on probation.
The impact of the sentence on the public is also significant. If the sentence is too lenient or too fierce, it may outrage society and may cause pain and distress in others, or may encourage some to commit similar crimes if they feel their chances of getting away with it with a slap on the wrist are great enough.
The potential danger to society of the perpetrator must be taken seriously. Oscar has shown a history of increasing episodes of severe temper and poor anger management, of a sense of entitlement and poor judgement.
Life threw him a 'curveball'
In some circumstances, courts are allowed to discount the usual sentence by suspending part of it for virtually any reason, including good behaviour, and community service. The court must not allow itself to fall for the fake arguments Roux constructed, backed by inexpert “experts”, about Oscar and his handicap. It must remember that any grounds for reducing the sentence must be compelling rather than romantic.
Oscar’s defence has insulted all disabled people and destroyed all the good Oscar ever did in insisting that people with disabilities should be treated as equal and normal. Which Oscar are we supposed to believe – the Oscar who demands equal treatment, or the Oscar who whimpers and insists life threw him a curveball, entitling him to special treatment?
Read more:
