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Thu Aug 25 04:52:24 CAT 2016

'Oscar won't go to jail'

Graeme Hosken | 10 October, 2014 00:31
"Pistorius's disability, contribution to society, remorsefulness and being a first-time offender will affect his sentencing," Phelps said. File photo
Image by: ROGAN WARD / REUTERS

Oscar Pistorius's displays of remorse, and the fact that he is a first-time offender with a highly successful sporting career, could mean he will not be jailed.

Speaking ahead of the start of his sentencing on Monday, legal experts said it was highly unlikely that Pistorius would be imprisoned.

Most believed house arrest or even a fine was on the cards.

Criminal law expert Martin Hood said it was important to understand the purpose of imprisonment.

"South Africa has moved away from the sentencing philosophy of 'an eye for an eye' to a more rehabilitative approach.

"The theory behind this is that punishment should be such that an offender does not commit the crime again . he must be taught why his conduct was wrong and understand the consequences."

Hood said Pistorius's personal circumstances, substantial financial losses, physical disabilities and medical requirements would be important factors that Judge Thokozile Masipa would take into account when deciding on the sentence.

"Pistorius has only been convicted of a crime of negligence. The law treats a person who's been found negligent very differently to someone who's done something [wrong] intentionally. Because of this ... he will probably be punished relatively leniently."

Professor Kelly Phelps, of the University of Cape Town's School of Law, agreed, saying a prison sentence would be considered extremely harsh.

"The way the public views a prison sentence compared to the way the courts view it is different.

"Any time spent in prison has an overwhelming effect on a person's life, not just in terms of his experience in prison but also afterwards, such as hindering the ability to find work."

She said there was no set minimum sentence in a culpable homicide case . The sentence was left to the judge's discretion.

"In terms of discretionary sentencing, the court needs to weigh the seriousness of the offence, an offender's culpability and the interests of society.

"Pistorius's disability, contribution to society, remorsefulness and being a first-time offender will affect his sentencing," Phelps said.

She said evidence admitted at the sentencing stage was broader than that led during the trial and was either mitigating or aggravating.

"In this case, what will be pertinent is that Pistorius shot through a closed door, not knowing who was behind it."

Hood - citing the R60000 fine imposed on former Bafana Bafana player Bryce Moon for killing Zimbabwean Mavis Ncube in a car accident in Sandton in 2009 - said Pistorius's defence would argue for a non-custodial sentence.

"A delicate balance, however, will have to be achieved in which Pistorius does not want to appeal the sentence but instead will have a sentence commensurate with that of others for similar offences."

Hood said the National Prosecuting Authority's guidelines stipulated that, when dealing with an offence involving death, the family of the person killed had to be consulted.

"Steenkamp's family, which she supported financially, will testify in aggravation of sentence. This, coupled with the prevalence of intimate-partner violence and firearms abuse, will be important in sentencing, which will involve the reports of social workers and psychologists."

Wits University criminal law specialist Stephen Tuson said that although Pistorius's displays of "remorse" in the dock were among the most talked about aspects of the trial, it was impossible to say exactly what would happen in sentencing.

"Some very seasoned practitioners think he will be imprisoned for a number of years.

"Others believe he will receive a wholly suspended prison sentence, although with some form of punitive action.

"The best alternative to jail is correctional supervision, a sentence of house arrest which would be for a maximum of three years.

"That would see him confined to his home and being able to leave only for legitimate reasons, such as work."

Tuson said the test of whether a custodial sentence was appropriate was the degree of negligence.

"If the court finds that in the killing there was total disregard for human life and the safety of others, then he will receive a jail sentence.

"But, if the court accepts that this was a genuine mistake, an awful miscalculation that, although negligent, could happen to any of us, then the court might find a jail sentence to be inappropriate."

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