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SENTENCING OSCAR

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THIS last week we were dragged back to the North Pretoria High Court to hear sentencing arguments in the infamous Oscar Pistorius trial.

Prior to this I mistakenly believed that judge Justice Thokozile Masipa would merely hand down a sentence with one sweep of her gavel.

However, it’s not as simple as that. According to the justice system, both the defence and prosecution have to hand down mitigating arguments ahead of the judge’s final sentencing. These arguments take into account the facts as handed down in the September 11 judgment in which Pistorius was found guilty of culpable homicide which is defined as “unlawful and negligent” killing.

The judge ruled that Pistorius had “acted too hastily and used excessive force. It was clear his conduct was negligent.”

In sentencing, however, it is important to consider public interest and not public opinion. With such a verdict there are three sentencing options that are available to Pistorius and it is now up to the judge to determine which are in the best interests of society at large.

A suspended sentence is one of the options available. It essentially provides that the sentence will not be enforced if the defendant meets certain conditions like restitution and staying out of trouble. It would equate to Pistorius walking free.

Correctional supervision is another sentencing option which does not involve incarceration, but might involve hours of community service or house arrest.

Community service could be sweeping streets or cleaning museums. With house arrest, Pistorius would only be able to leave the house to attend church. However, sitting in a cushy home in Waterkloof would not be considered a weighty punishment in most instances as he still would not be deprived of the luxuries he is most accustomed to.

Incarceration is the third option that is available to Pistorius and probably the most unpalatable one. The maximum sentence for culpable homicide is 15 years. In his sentencing argument, Gerrie Nel, the State prosecutor did not mince his words when he asserted that a 10-year jail term would be just.

However, the defence has argued that prison would “break” Pistorius because his disability makes him particularly vulnerable. It was also argued that prison facilities are inadequate for someone of Pistorius stature.

I found this assertion rather condescending because with all due respect, Pistorius is not the first paraplegic to be incarcerated in South Africa. Statistics indicate that there are 125 disabled persons currently being housed in South African prisons.

It’s ironic how Pistorius showed heroism by wanting to compete with able-bodied men at the last Olympics. However when it comes to sentencing there is an abject uproar about being incarcerated with other able-bodied prisoners.

An unsavory picture was further painted of South African prisons being an enclave of gang violence and a breeding ground for diseases like tuberculosis and HIV. Shrien Dirwani tried to fight off his extradition by claiming prisons in South Africa were “inhumane, harsh and oppressive”.

However, these claims were dismissed and Dirwani is now here in South Africa to face the music of his own trial. Lest we forget that prison is not supposed to be a honeymoon. Prisons are not five-star luxurious hotels and I am sure if prisons came under scrutiny in most countries they would be found lacking in some aspects.

Pistorius’ defence lawyer, Barry Roux, in his sentencing argument posited that no amount of sentencing could equate to the suffering that his client has already endured in the last 18 months.

Not only is the moral punishment associated with Oscar’s crime, but there is the physical loss stemming from the loss of friends, loss of income, loss of endorsements, loss of his properties.

However, if we flip the coin and think of the loss that the Steenkamps have suffered. They have lost a life through Pistorius’ actions. A life that can never be replaced. It’s true no amount of time in jail could ever equate to the loss of human life, but I believe if he is to show true reparation for his actions he should serve the time.

It is said when considering sentencing one must evaluate whether we want the person removed from society? Is it in the best interest of the public that we have paraplegic gun-wielding, trigger-happy Olympian in society? A sentence should also act as a deterrent for future would-be offenders.

If Pistorius walks what message are we sending about people firing four shots through a closed door? It’s a precedent that will be used in other law cases and it could be a dangerous one indeed. Just as justice should be tempered with mercy; similarly a sentence should also fit the crime.

Sue Nyathi is the author of the novel The Polygamist. You can follow her on Twitter @SueNyathi

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