Oscar: State asks for 15 years, Roux asks for less - As it happened

2016-06-15 15:30

Day three of proceedings in Oscar Pistorius's murder sentencing have wrapped, with the State arguing that Pistorius must get a minimum of 15 years "because he has yet to show remorse".


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Last Updated at 16:08
15 Jun 15:47

Court adjourns rather abruptly.

Nel did not finish his final heads of argument completely, but got his main points across.

Judge Masipa has not ruled on whether to release graphic crime scene photos of Reeva Steenkamp's dead body. She will announce that at a later date.

Sentencing proceedings resume for the final day on Friday, with a break for Youth Day tomorrow.

The sentence will be handed down on July 6.

Read on for how day three of sentencing unfolded...

15 Jun 15:46

Nel concedes: "I realise it's not an easy decision."

Judge: "I will think about it. I need to get a date, for when I'll be sentencing. For that reason I will adjourn.

"We will adjourn for the purpose of getting a date for sentencing. If I can't get a date immediately, we'll come back and continue on Friday."

15 Jun 15:43

Nel speaking again.

Nel: "My lady, it's not a difficult thing [to release the pictures]."

Judge: "But what if I agree with him?"

Nel: "My lady, if we make it available, it's up to people what they do with it. We're not showing it to children. If the media choose to run with it, that's their responsibility.

"It's just an application, my lady, to make it publicly available.

"I brought the original application to ban it because the mother of the deceased was in court. But she has now given her permission."

15 Jun 15:40
Roux says he has finished because he doesn't want to "abuse the reply process".

15 Jun 15:38

Nel interrupted his closing argument to ask about the application for the release of the pictures.

Nel has now ceased completely and is sitting. Roux gets a second chance to argue.

15 Jun 15:36
Roux is now defending his heads of argument that Nel attacked. Masipa allows it. They have run 35 minutes over the scheduled sitting time.

15 Jun 15:34

Gerrie Nel asks Judge Masipa about releasing the photographs again.

Judge Masipa interrupts.

"Are you asking me to extend the scope of this sitting?" she asks.

He pauses.

"Yes my lady. The court has the power to make an order."

"Oh I know I can do it, I'm asking if you're extending the scope of our mandate to sentence afresh?

"This is new my lady. A witness yesterday asked for it to be released. I've consulted with the Steenkamp family and we think before the court sentences it still has the power to make the order."

Roux objects now.

"My lady I don't think this is the proper time to discuss the application. It has such wide ramifications. Must we allow children to see it? How do we stop children from seeing it?

"This application must be made on its own merits."

15 Jun 15:24
Nel now searching more of Roux's heads of argument.

15 Jun 15:22

Nel now dealing with psychologist Jonathan Scholtz's report about Oscar.

"Professor Scholtz's evidence bothers me, especially his sweeping statement about incarceration."

15 Jun 15:20

"All Mr Steenkamp asked is that Mr Pistorius must pay. That's it. he didn't say forever, or to send him away forever.

"He just wants him to pay. That's not anger."

15 Jun 15:19

Nel now referencing Barry Roux's heads of argument.

"Mr Roux said the accused punishes himself every day, and will punish himself more than a court ever could.

"But I don't know how, my lady. How does he punish himself?

"What we do know, is how Mr Barry Steenkamp punishes himself. Every day. We heard it here in court. That is a broken man."

Nel referencing Steenkamp's admission that he sticks his diabetes needle in his arm, and stomach to see if he can feel the pain that his daughter felt the night she died.

15 Jun 15:16

15 Jun 15:06

Nel referring once again to case law to hammer home his point.

This must be his fifth example, stating the same thing: that the minimum of 15 years ought to be imposed.

"We also argue that if the court can justify a lesser sentence, then long-term imprisonment [before parole] must take place."

"My lady, we argue for a minimum of 15 years. But Reeva Steenkamp's life, was not a minimum."

Nel again asks for the ban on crime scene photos of Reeva Steenkamp be lifted.

15 Jun 15:02

"We submit to the court that the court accepted the evidence, that she was standing facing the deceased. His evidence is, when the accused fired the shots, Reeva was standing in front of the door.

"The court has taken into account that Reeva had nowhere to go. The accused was convicted of murder my lady. He intentionally killed the decease.

"Although he may have thought it was an intruder, this court found that he was guilty of murder."

15 Jun 15:00

Nel mentioning another legal term dolus indeterminatus, where the accused does not have a particular object or person in mind, but can foresee harm coming to a person or object, for instance a bomb blast.

Nel says Oscar's action is a mixture of dolus eventualis and dolus indeterminatus.

15 Jun 14:55

"My lady, we don't know, he hasn't given us an acceptable version.

"What we do know, is that the accused said he did not want to shoot a warning shot into the shower, because he was worried the bullet might ricochet and hit him. But he fired through a door four times."

Nel implies that Pistorius knew even he was in danger indirectly if he fired.

15 Jun 14:52

Nel references the Bob Hewitt rape case, without naming Hewitt directly, describing him as 'an old tennis coach'.

"He was sentenced to direct imprisonment, despite the crime happening years ago, and the victims being alive.

"Why should this accused not get the same?"

15 Jun 14:51

Nel: "They killing of the word was gratuitous, the court documents say.

"I had to look up the word 'gratuitous'. It was excessive and unnecessary. Firing four shots through the door, that tore up the body of the deceased, was gratuitous, my lady."

15 Jun 14:49

"This is a serious, serious offence my lady," Nel continues.

"The deceased in this matter disappeared. One gets the feeling that the personal circumstances of the deceased disappeared. The court according to case law should take into account who she was, what she was.

"She had no contribution in her death. She wanted to be a model. She wanted to travel.

"Those personal circumstances should be taken into account just as much as the accused's.

"Life was the most valuable asset of the deceased. She can never walk in court, my lady."

15 Jun 14:45

Nel: "The court knows prison is not a congenial place, but a prison is primarily a punishment.

"The sentencing officer must take into account all the recognised aims including retribution. A psychiatrist takes into account rehabilitation.

"Without taking into account all the factors, and not just rehabilitation, you will get a warped account.

"I asked Professor Scholtz yesterday if he only looked at the accused. He said yes. He dismissed some of the other reports."

Nel argues that a psychologist's natural tendency is to look for rehabilitation.

A judge, on the other hand, must take into account all the factors, including deterrence, and especially retribution for the victims.

15 Jun 14:41

Nel: "My lady, we have Mr Roux who will give the courts lots of reason; of being vulnerable, being scared, walking up and down, why he did it.

"But it's now up to the accused to take the court into his confidence, and explain to this court. He hasn't done that my lady.

"Whilst awaiting this sentence, he has given a television interview, explaining himself, talking about that night."

15 Jun 14:36

Nel: "My lady, what the court has heard, is the accused elected to give an interview on TV, but not testify in court.

"That's disrespectful to the court, and disrespectful to the victims."

15 Jun 14:34

"'I've caused a death', is not the same as 'I murdered her'," Nel says.

"We can't have true remorse without acknowledgment."

Nel citing legislation that says rehabilitation is made more difficult without a showing of remorse.

15 Jun 14:33

"Also, acceptance of the verdict is also not remorse," Nel says.

"Until the accused tells the court why he did it, his regret can't be taken as genuine remorse.

"What motivated him? We don't know.

"The court made a finding, but not on what he said. The court rejected his evidence. So did the SCA.

"The reason he accepted it is simply, 'I just have to'. He didn't have a choice."

Nel referring to the Constitutional Court refusing Pistorius's appeal.

15 Jun 14:31

Nel: "Any person who had just killed someone, would feel sorry.

"Having killed Reeva, I'm sure he thought 'why did I do it?'

"But real remorse would be taking himself into the court's confidence, and telling us why he did it; why he fired the shots.

"He did not do that."

15 Jun 14:29

Nel: "My lady, the court has heard the victims. And their rights should get the same weight as the other three factors.

"There is a chasm between regrets and remorse. Many accused people might feel regret over their conduct. Remorse is the conscious acknowledgment of your actions on another."

15 Jun 14:27

Nel reminds the court of Kim Martin, Reeva's cousin's testimony, how she heard of the killing on the radio, how she drove back home to find her mother sobbing.

He speaks about Barry Steenkamp's testimony, about how he received a phone call on the day.

"No parent deserves to get that phone call. 'It was chaos, it was chaos', he said. 'I just wanted to see my brother'."

15 Jun 14:24

"Justice must still be displayed despite forgiveness.

"Forgiveness has to do with forgiving, not the crime."

15 Jun 14:23

Nel: "In this particular instance, we can't ask the victim to tell us how she suffered. But we have victims. Victims who are suffering, victims who are grieving."

Nel mentions another case where a woman was repeatedly raped by her stepfather. In that instance, the woman forgave her stepfather, but that "doesn't affect the court's decision. The court must still carry through with justice".

15 Jun 14:20

Nel: "My lady, the victims in a matter like this, must be the mother and the father of the deceased, and they have certain rights.

"It's respectfully submitted that the traditional aims of punishment is that the victim must be afforded a more prominent role, and sentencing must be victim-sentenced.

"The victim provides the court with the physical and psychological harm. By giving the victim a voice, the court will have the opportunity to truly realise the wrong done.

"My lady, we had a victim here [Barry Steenkamp] that broke down yesterday. He will never see her again. He talks to her everyday. He's almost become a recluse.

"He has done nothing wrong. Reeva did nothing wrong. But this accused [Oscar] murdered her."

15 Jun 14:16

Nel: "It's the duty of the court, not to follow public opinion, but to lead public opinion.

"It remains the court's duty to sentence fearlessly, even if the sentence doesn't satisfy the public.

"In Mr Steenkamp's evidence yesterday, he would want people to see what injuries this accused caused to his daughter, so that other people won't act as this accused did.

"A sentence from this court must deter people from arming themselves in a bedroom, walking to a bathroom, firing four shots, when he is not in danger."

15 Jun 14:13

"My lady, the court convicted the accused of culpable homicide, and said it was a serious offence. It's now murder, my lady, it's more serious.

"We argue that rehabilitation will play a smaller role."

15 Jun 14:10

Nel: "What I want to just pause at my lady, in the Rabie judgment, I will quote from my notes.

"The element of mercy has nothing in common with sympathy with the accused. It would be wrong first to derive a sentence because of relevant factors, and then reduce it for mercy's sake.

"If the court arrives at 15 years as a minimum, the court can't then decide, okay now I will apply mercy.

"The consideration of mercy must not justify or seem to minimise, or condone serious crime.

"Once again, we refer to Rabie, the court found a judicial officer should not find a punishment in the spirit of anger. Nor should he strive after severity, nor on the other hand to a misplaced pity.

"Pity should play no role, my lady."

15 Jun 14:06
Back in court, State prosecutor Gerrie Nel picks up where left off, arguing case law that a judgment of 'dolus eventualis' warrants a minimum sentence of at least 15 years.

15 Jun 14:05
WATCH: Oscar walks on his stumps in court

15 Jun 14:04
And we're back.

15 Jun 13:01

Nel takes a break to suggest the court go on lunch break.

Masipa agrees, court adjourns for lunch.

15 Jun 12:58

Nel continues to cite previous case law in reference to the minimum sentence.

"It's a duty of this court, my lady."

15 Jun 12:54

Another picture of Oscar Pistorius walking on his stumps in court.

Picture is a screengrab taken off a live stream.

15 Jun 12:53

Nel: My lady, if the benchmark is 15 years, correctional supervision, is not even close to the benchmark.

With the utmost respect, the legislation has provided us with a benchmark [for dolus eventualis].

15 Jun 12:50

Nel citing case law that the only case for an exception to 15 years under dolus eventualis is a "truly convincing" reason.

"Undue sympathy should not be taken as a factor."

15 Jun 12:48
"The court does not start at a clean slate. The SCA ruling is saying that the slate starts at 15 years. That's where it starts."

15 Jun 12:47

Nel: "The finding of remorse with no adequate explanation; remorse for what? I feel sorry that Reeva's death? I feel sorry for myself that Reeva's dead?

"One does not know why he did this. That excuses remorse as plausible.

"He armed himself with the intention to kill. He formed this intention in his bedroom, walked to the bathroom, and fired four shots through the flesh of Reeva Steenkamp."

Nel says a suitable sentence would be not less than 15 years.

15 Jun 12:45

Nel: "My lady, the accused was a poor witness. He failed to provide any justifiable version for his actions. His versions varied substantially.

"Consequently, although frightened, the accused armed himself to shoot if someone was in the bathroom, and when there was, he did. We do not know what his explanation was for firing the four shots."

15 Jun 12:41

Nel relays the sequence of the events as found by the SCA.

"He intended to shoot someone, in the bathroom. Why is that not bordering on dolus directus?

"But the most important point, is that after pausing and realising that someone was in the bathroom, he fired four shots into the cubicle.

"He has never offered an acceptable reason for his action. In this court, he has never offered an acceptable explanation. He elected not to.

"The possibility of death was an obvious result. This is far removed from negligence. It borders on dolus directus."

15 Jun 12:38

Nel: The accused's culpability is bordering on dolus directus.

My lady, Mr Roux referred to the accused did not fire high, the accused fired low.

The issue was not whether the accused had a direct intent to kill, but whether he had foreseen the possibility of death, and reconciled himself with that event.

This court, my lady, found the following, the accused knew that the toilet was a small cubicle, and there was no escape.

He fired not one, but four shots. The accused had been trained in the handling of firearms. In my view, all that is very aggravating.

That, my lady, borders on dolus directus. The SCA found that it was an inescapable conclusion that it bordered on dolus directus.

15 Jun 12:32

Nel now addressing the State's heads of argument.

"My lady, what wasn't quoted from the SCA ruling yet, that while listening to witnesses, there was an overemphasis of the accused's vulnerability.

"The SCA said, that against odds, he excelled as a top athlete. His was raised by a mother who never treated him as a disabled person. For some reason, that picture remains in the background. We have to be able to balance the two."

15 Jun 12:28

Nel: Mr Steenkamp asked, it is now time to see, to see the pictures. You've seen the pictures. I sit them with everyday.

Is it not time to see what the accused did to the deceased? It wasn't an intruder. Isn't it time, as Mr Steenkamp wanted the court to see?

We now apply for the world to see what this accused did to her head.

15 Jun 12:26

Nel: Another point, Mr Roux argues that if imprisoned, the accused is worried his studies will stop.

There is no basis for that.

When he was in prison, he was allowed a TV. Why won't he be allowed a computer to study?

15 Jun 12:25

Nel: I want to address a comment Mr Roux said, about a woman who did not want to shop with "a murderer".

Mr Roux said "A murder of what". That "what"is crucial. It's "who". As if my lady, the fact that he thought it was an intruder detracts from the seriousness of murder.

Mr Roux also argued that the father's pain was exacerbated by the idea that this could be dolus directus. I was astonished.

It has nothing to do with what the father thought. It deals with his pain, and how he missed his daughter.

Mr Roux says he accepts the court judgment, because he has to. That's very different from accepting the court findings because he it's the right thing to do.

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