Judge Thokozile Masipa, after hearing arguments by advocates Gerrie Nel for the State and Barry Roux for Oscar Pistorius over his “shockingly inappropriate” sentence, has dismissed leave to appeal, with costs.
She said that the state had failed to show that any other court would have arrived at the need to impose a harsher sentence on Pistorius. The sentence imposed was for six years.
It is believed the National Prosecuting Authority will now consider its options in terms of approaching the Supreme Court of Appeal directly.
In terms of prevailing law, Pistorius faced a 15-year sentence for murder once the Supreme Court of Appeal (SCA) overturned Masipa’s previous conviction of culpable homicide.
Friday was the second time in this matter that Masipa’s judgment was questioned by Nel, the first being over the initial conviction of culpable homicide.
Pistorius fired four bullets through his bathroom door killing Reeva Steenkamp on Valentine’s Day in 2013.
Nel argued that, far from being fearful, he was empowered and in charge by being in possession of a firearm.
Referring extensively to the SCA judgment, Nel said Masipa had failed to take into account three “major aggravating factors”.
It was in the bedroom that the accused had formed the intention to shoot and, when he realised there was someone behind the door, he fired four shots, Nel said.
The SCA also rejected the defence that the accused acted in private defence or even putative private defence. Thus there existed no justification for the accused’s actions, Nel told Masipa.
The third, and “perhaps the most important factor” Masipa failed to take into account, was that Pistorius had fired four shots through a closed door, and the SCA had found Pistorius had never offered an acceptable explanation for doing so.
Roux, however, called the application “an insult to the judgment” and said Pistorius “did not simply ‘feel vulnerable’”, rather that “all persons with severe physical disabilities are, as a matter of fact, objectively more vulnerable to attack than able bodied persons”.
“A proper reading of the judgment on the merits, which was not in this regard disturbed by the judgment of the SCA, makes it clear the accused believed that it was an intruder in the toilet and not the deceased,” Roux said.
“That was a mistake and remained a mistake.”