Oscar Pistorius - Discussion Thread #66~ the appeal~

[mrjitty]

Thank you. I think my difficulty in understanding your post is because there are different grades of murder - DD is a more serious offence and carries a harsher penalty. The intent can be differentiated in relation to the intruder, it is having direct intent to kill under DD, rather than foreseeing the person will probably be killed, DE.

But I can understand that if, as you say, they cannot deviate from what is sought by the State, an upgrade to DD is not on the cards.

I am not sure you have this right to be honest.

DD & DE are not offences. The offence is the same in each case i.e. murder.

Premeditated murder carries a mandatory 25 year sentence.

Murder where not premeditated is 15 years min. This is what OP is looking at.

Whether intention is found to be DE or DD the facts are essentially the same - the intentional & unjustified shooting of an "intruder". So i can't see that it would make much difference to the final sentence whether it was found that he meant to kill the intruder or simply meant to shoot them and did foresee the risk of death

The result and culpability is effectively the same

Personally I think it makes no difference by which intention he meant to kill the "intruder" (not that i believe the intruder thing!)

But i would need to check all this again in the actual statute books.

 

[Interested Bystander]

What a wonderful fairytale to read before I go to bed. :floorlaugh:

Three fairytales in one day! Sleep tight.

 

[Tortoise]

I am not sure you have this right to be honest.

DD & DE are not offences. The offence is the same in each case i.e. murder.

Premeditated murder carries a mandatory 25 year sentence.

Murder where not premeditated is 15 years min. This is what OP is looking at.

Whether intention is found to be DE or DD the facts are essentially the same - the intentional & unjustified shooting of an "intruder". So i can't see that it would make much difference to the final sentence whether it was found that he meant to kill the intruder or simply meant to shoot them and did foresee the risk of death

The result and culpability is effectively the same

Personally I think it makes no difference by which intention he meant to kill the "intruder" (not that i believe the intruder thing!)

But i would need to check all this again in the actual statute books.

I used the wrong word, DD and DE are not offences, they are of course different categories of murder.

SA has 4 classifications of murder, 1) Premeditated 2)DD 3) DE 4) Dolus Indirectus

Premeditated murder where there is a plan carries a life sentence
DD where there is no prior plan carries a sentence of 25 years
DE carries a sentence of 15 years
DI (I know nothing about this one)

There is a useful legal panel video with Ulrich Roux and Chris Greenland explaining the different forms of intention here - relevant part starts just after 5 minutes in.

[video=youtube;SBKGrBLfhBs]https://www.youtube.com/watch?v=SBKGrBLfhBs[/video]

 

[mrjitty]

I used the wrong word, DD and DE are not offences, they are of course different categories of murder.

SA has 4 classifications of murder, 1) Premeditated 2)DD 3) DE 4) Dolus Indirectus

Premeditated murder where there is a plan carries a life sentence
DD where there is no prior plan carries a sentence of 25 years
DE carries a sentence of 15 years
DI (I know nothing about this one)

There is a useful legal panel video with Ulrich Roux and Chris Greenland explaining the different forms of intention here - relevant part starts just after 5 minutes in.

[video=youtube;SBKGrBLfhBs]https://www.youtube.com/watch?v=SBKGrBLfhBs[/video]

Ok - you might be right!

Its a long time since i looked over the minimum sentencing provisions so I will dig back in to it!

 

[mrjitty]

Minimum sentences for murder are controlled by Criminal Law Amendment Act, 1997

It seems parole is almost always granted when the minimum sentence is served


Premeditated murder = life sentence - parole hearing must be granted at 25yrs s51(1) and Schedule 2 part I

Murder. when- (a) it was planned or premeditated;

Any other murder not being premed is 15 years per s51(2) and Schedule 2 part II

Murder in circumstances other than those referred to in Part 1.

(second and third offence get 20/25yrs respectively)

Also the minimum period can be circumvented.

(3) (a) If any court referred to in subsection (1) or (2) is satisfied that substantial and
compelling circumstances exist which justify the imposition of a lesser sentence than the
sentence prescribed in those subsections. it shall enter those circumstances on the record
of the proceedings and may thereupon impose such lesser sentence.

I am not finding anything about specific sentences for DD/DE/DI so far.

Do you have a cite for that?

There are tougher sentences for people who murder in the context of rape or robbery but those don't apply here.

As far as I can see, he will be looking at 15 years

 

[Deleted member 102539]

O/T

http://www.politicsweb.co.za/politi...il&utm_term=0_a86f25db99-e5620699d7-140194665

Racism behind lack of bail for Krugersdorp Four

Our policy stance is that we condemn any form of brutality, be it brutality against the society or against the police. We will continue our support for the 4 police officers from the Krugersdorp SAPS.
With regards to the Magistrate at Krugersdorp, we feel his ruling to deny the four Police officers bail was an injustice. The fact is that no one opposed bail; these members posed no flight risk.
Making comparisons with other cases, such as the recent Pistorius one, bail was granted without hesitation while he posed more risk in that regard.
These officers do not pose any such risk, and we are of the view the manner in which the decision to deny them bail is reflective of the racist approach by the same judicial officers.

OP will for a long time remain the person who was favored in all respects, I think. And that's the truth, we all know. Hopefully sometime there will be an end to this ... :tantrum:

 

[Tortoise]

<rsbm>

I am not finding anything about specific sentences for DD/DE/DI so far.

Do you have a cite for that?

Sentences referred to in my post above are as stated by U. Roux and Ret. Judge Chris Greenland in the video linked.

It makes sense that a directly intended murder should carry a longer sentence and be distinguished from one which was only foreseeable as a possibility. It's similar to the difference between murder and manslaughter in the UK which carry different sentences.

I don't know where it is cited, but I trust these well respected guys to know their laws. U. Roux states that DD is 25 years with opportunity to apply for parole after 12 yrs, whereas premeditated is life, with opportunity for parole only after 25 yrs.

If it goes to DE as sought by the State then I agree, he is looking at 15 years.

 

[foxbluff]

This was an interesting case before the SCA.

Supreme Court of Appeal
Director of Public Prosecutions v Mtshweni
Case No. 52/06

… If the error is one on which the acquittal of an accused turns then there is a grave irregularity in the proceedings and the court of appeal is bound to order a retrial on the same or amended charges. Question of law reserved answered in favour of the State, and institution of retrial ordered.

[32] It is clear, therefore, that there is no argument before this court that where a trial court has erred on a question of law, the institution of a new trial will infringe s 35(3)(m). The possibility of double jeopardy does not arise. And, as the State argues, there will be a serious miscarriage of justice should a proper trial not ensue. It is not only an accused whose interests must be protected by the criminal justice system. There must be fairness to the public, represented by the State, as well. There must be fairness to the victims of the crime and their families. In S v Jaipal17 the Constitutional Court said:

‘The right of an accused to a fair trial requires fairness to the accused as well as fairness to the public as represented by the State. It has to instil confidence in the criminal justice system with the public, including those close to the accused, as well as those distressed by the audacity and horror of crime.’

Paras. 28-34 are all well worth reading.

http://www.saflii.org/za/cases/ZASCA/2006/165.html

Ty for the link. This was a great read. I was originally only planning to read para(s) 28-34, but became fascinated and read the entire Judgment!

This was a very complicated case imo. Subject Judges took the "Big Step" and Ordered a Retrial and managed to reach that decision between Aug. 17 & Sept. 27.

I don't think OP's case is anymore complicated than the subject case so when is SCA going to deliver Judgment in his case?

I'm one of those who is of the opinion that they've known for weeks now what their Judgment is. So why can't they, at least, give us a date?

I'm tired of waiting and was fully expecting to come onboard here today and see JudgeJ's cute/clever little "bed" icons counting off how many days left before touchdown.

 

[Marfa Lights]

I just have a suspicion they are debating whether or not to have a new trial!!

 

[JudgeJudi]

O/T I'm listening to Krejcir's sentencing hearing (live). Here's a judge who's very engaged with the court and is laying down the law to counsel. He's so different to Masipa.

http://www.enca.com/south-africa/catch-it-live-radovan-krejcir-co-accused-be-sentenced-0

 

[Marfa Lights]

I will never forget Masipa reading the judgment out loud in court and seeming as if it were the first time she had ever read it-- and then abruptly adjourning for the day only shortly after the lunch recess. Wasn't that when she had to stop and insert language about "or anyone else for that matter" regarding her statement how OP clearly did not intend to kill Reeva behind the door?

 

[soozieqtips]

I will never forget Masipa reading the judgment out loud in court and seeming as if it were the first time she had ever read it-- and then abruptly adjourning for the day only shortly after the lunch recess. Wasn't that when she had to stop and insert language about "or anyone else for that matter" regarding her statement how OP clearly did not intend to kill Reeva behind the door?

I think it was. It was as if someone had to clue her up behind the scenes, hence the 'clarification' the next day. A bit of a shambles, really.

 

[Tortoise]

I will never forget Masipa reading the judgment out loud in court and seeming as if it were the first time she had ever read it-- and then abruptly adjourning for the day only shortly after the lunch recess. Wasn't that when she had to stop and insert language about "or anyone else for that matter" regarding her statement how OP clearly did not intend to kill Reeva behind the door?

She didn't just bend over backwards to accept his totally unbelievable story, she threw out all the evidence that showed it was a constructed lie, and she created a new defence for him! One where he was defending himself against NO ATTACK apparently unconsciously.

I remain incredulous to this day. My jaw is still on the floor.

Roux struck lucky with Masipa, but his luck has run out this time around.

 

[mrjitty]

Sentences referred to in my post above are as stated by U. Roux and Ret. Judge Chris Greenland in the video linked.

It makes sense that a directly intended murder should carry a longer sentence and be distinguished from one which was only foreseeable as a possibility. It's similar to the difference between murder and manslaughter in the UK which carry different sentences.

I don't know where it is cited, but I trust these well respected guys to know their laws. U. Roux states that DD is 25 years with opportunity to apply for parole after 12 yrs, whereas premeditated is life, with opportunity for parole only after 25 yrs.

If it goes to DE as sought by the State then I agree, he is looking at 15 years.

BIB - do you have the timecode for where he says this?

Sorry - but its 28mins of video

I agree there are 3 forms of intention for murder. Plus there is Premed (not strictly an intention).

Premeditated murder is an aggravating feature of murder which twigs s51(1) and Schedule 2 part I. Other aggravating features include murder in the course of robbery or rape.

Premeditated murders would normally feature the DD form of intention.

From the early section i listened to - I believe that Roux is saying that if you were sentenced to 25yrs for non premed (15 is only the minimum) you can get parole in 12

Does that make sense?

Sentencing is generally based on the specific context and features of the offending and it does not follow that a murder DD is worse than a murder DE or DI

For instance, in the course of a Bank Robbery, i fire shots to frighten the bank tellers but kill one of them with a ricochet.

This would be murder DE - but would attract life sentence under the s51(1)

Alternately in a drunken argument with my business partner, he starts blackmailing me, so I shoot him dead.

This would be murder DD but would get a much lighter sentence.

(2) The crimes affected by s 51(1) and details of Part I of Schedule 2
(a) Introduction
The crimes to which s 51(1) applies are murder and rape, when
accompanied by the aggravating features as specified in the Act.
The first offence is &#8216;planned or premeditated murder&#8217;. Planning and
premeditation have long been recognized as aggravating factors for many
crimes, but especially murder.35 There is no significance in the use of both
terms. Although premeditation will generally require some planning, the
factors are not fully inclusive of one another.

 

[Tortoise]

BIB - do you have the timecode for where he says this?

Sorry - but its 28mins of video

I agree there are 3 forms of intention for murder. Plus there is Premed (not strictly an intention).

Premeditated murder is an aggravating feature of murder which twigs s51(1) and Schedule 2 part I. Other aggravating features are murder in the course of robbery or rape.

Premeditated murders would normally feature the DD form of intention.

It's around the 5 minute mark, I can't play it at the moment because my internet connection is playing up and it times out, but I will try again later if you haven't managed to locate it.

 

[mrjitty]

It's around the 5 minute mark, I can't play it at the moment because my internet connection is playing up and it times out, but I will try again later if you haven't managed to locate it.

OK - this is the part i listened to.

He doesn't say murder DD gets 25 years.

He is saying that if you were sentenced to premed its life and no parole until 25 years - whereas it you are sentenced to 25yrs for non premed you can get parole in 12

Remember these are only minimum sentences.

IMO it makes no odds whether this murder is DD or DE

The question is whether this was PPD

Sentence will have to take into account the honest belief in the intruder - so it is likely to be at the lowest end of the scale.

The starting point will be 15 years - but possible reduced due to exceptional circumstances (though it is very unclear what these include).

 

[JudgeJudi]

I will never forget Masipa reading the judgment out loud in court and seeming as if it were the first time she had ever read it-- and then abruptly adjourning for the day only shortly after the lunch recess. Wasn't that when she had to stop and insert language about "or anyone else for that matter" regarding her statement how OP clearly did not intend to kill Reeva behind the door?

I think it was. It was as if someone had to clue her up behind the scenes, hence the 'clarification' the next day. A bit of a shambles, really.

Masipa made an error while reading her judgment. On day one she repeatedly said words to the effect that OP hadn&#8217;t admitted that he had the intention to shoot and kill the deceased. The following day she amended this by adding, &#8220;or any other person for that matter&#8221;. Unfortunately for Masipa, a judge must correct an error immediately it is made, or certainly while the court is in session. She cannot come back the next day and correct it.

This article was published following the verdict.

The vast majority of the legal fraternity agree that the State failed to make a compelling case, but they are nonetheless adamant that the prosecution satisfied the legal requirements for a conviction of second-degree murder, or murder dolus eventualis.

Ulrich Roux said, &#8220;Our law is very clear on the matter. ... I have yet to meet a lawyer or legal expert who doesn&#8217;t see it that way. From the evidence, it is clear that Pistorius knew there was a real possibility that he would kill whoever was behind that door. It&#8217;s a form of indirect intention, and this is murder dolus eventualis.&#8221;

Masipa, however, appears to have focused her interpretation of the law on the fact that OP didn&#8217;t knowingly kill Reeva, while the law clearly refers to the death of a person, any person, and not necessarily the person identified in a charge sheet. It is on this key point that she is likely to come in for some ferocious criticism over the next few days.

&#8220;Given that Masipa&#8217;s high court judgment legally binds the regional and magistrate&#8217;s courts in Gauteng, a province notorious for its high murder rates, to follow the precedent she has set, is the state not actually obliged to appeal?&#8221;

http://www.iol.co.za/news/crime-courts/masipa-got-it-wrong-in-law-1.1750505#.VksgTWyhc4k

 

[JudgeJudi]

It isn’t yet clear exactly what Pistorius will be doing for his community service, but reports suggest tasks could include sweeping outside museums and cleaning hospitals. :sweep:

http://metro.co.uk/2015/11/15/oscar-pistorius-reports-for-first-day-of-community-service-5503420/

 

[soozieqtips]

It isn&#8217;t yet clear exactly what Pistorius will be doing for his community service, but reports suggest tasks could include sweeping outside museums and cleaning hospitals. :sweep:

http://metro.co.uk/2015/11/15/oscar-pistorius-reports-for-first-day-of-community-service-5503420/

Why is it secret, I wonder? How do we know his community service doesn't just involve cleaning his own trophies and admiring himself in the mirror?

 

[Marfa Lights]

Why is it secret, I wonder? How do we know his community service doesn't just involve cleaning his own trophies and admiring himself in the mirror?

I hadn't thought about it, but I guess there would be a lot of paparazzi getting in the way of his chores. Maybe Mikey Schultz driving by for a good laugh too.