Friday, November 24, 2017

The Director of Public Prosecutions, Gauteng v. Oscar Leonard Carl Pistorius

   In the latest chapter in the Oscar Pistorius case, on November 24th, South Africa's Supreme Court of Appeal has set aside Oscar Pistorius' sentence imposed on  July 6, 2016. In 2014, Pistorius was originally found guilty of one count of Culpable Homicide as well as one count of South Africa's Firearms Control Act for killing his girlfriend Reeva Steenkamp. Although Pistorius was originally sentenced to a prison term of five years, prosecutors appealed that sentence, charging Pistorius should have foreseen that his actions would result in death. As a result, in December 2015, South Africa's Supreme Court of Appeal set aside the verdict of culpable homicide holding that Pistorius should have been found guilty of murder and not culpable homicide and ruling against his defense of private defense.

 At that time, the Supreme Court held that Pistorius was guilty of murder and sent the case back to the trial court for resentencing. According to South African case law, prosecutors may reserve questions of law for appeal if a case does not result in an acquittal ( S v Basson 2007 (1) SACR 566 (CC)). According to the Supreme Court's 2015 decision, because culpable homicide is a lesser included offense of murder, the presence of a conviction on the lesser included offense, opened the door to an appeal on matters of law by the prosecutor. In its 2015 decision, the Supreme Court found that the trial court's determination of the defendant's mental state was flawed.

In its latest decision, the South African Supreme Court set aside Pistorius' 2016 sentence finding that it was too lenient. In its place, the Court imposed a sentence of 13 years, 6 months imprisonment. According to South African law, individuals convicted  of murder that is not planned or premeditated, "shall be sentenced to imprisonment for a period of not less than 15 years, unless there exist substantial and compelling circumstances as contemplated by s 51(3) of the CLAA justifying the imposition of a sentence lesser than the prescribed minimum sentence." The Supreme Court found that the aggravating factors in the case, namely the number of shots fired, the fact that the accused had been trained in the use of firearms, and the lack of an escape from the bathroom where the shots were fired outweighed the mitigating factors. In particular, the Supreme Court stated that the defendant did not appear to be remorseful. Moreover, the members of the Supreme Court felt that the trial court had overemphasized the defendant's personal circumstances and had privileged the prospects for rehabilitation over the other goals of criminal punishment such as retribution, prevention, and deterrence.

 Although Pistorius may appeal this latest decision to South Africa's Constitutional Court, that Court denied an earlier appeal by Pistorius.

 

 

   

http://lawprofessors.typepad.com/comparative_law/2017/11/-the-director-of-public-prosecutions-gauteng-v-oscar-leonard-carl-pistorius-.html

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