South Africa’s fallen star Oscar Pistorius could be jailed for 10 years or return to serve house arrest Tuesday when he will be sentenced for killing model girlfriend Reeva Steenkamp.
In her decision, Judge Thokozile Masipa has to balance the threat the Paralympic gold medallist poses to society against his likelihood of rehabilitation and eventual re-introduction to public life.
Acquitted of murder, Pistorius was found guilty last month of culpable homicide, a conviction whose penalty – which ranges from a fine to 15 years behind bars – is at the sole discretion of the judge.
Last week Pistorius’s lawyers argued that the 27-year-old should be sentenced to three years correctional supervision, which is also known as house arrest.
He would then do 16 hours of community service a month, suggested the defence.
In an eloquent closing argument, defence lawyer Barry Roux said Pistorius is an ideal candidate for a non-custodial sentence given his remorse, his status as a first-time offender and the fact he would be “vulnerable” in South Africa’s notoriously brutal jails as a result of his disability.
Pistorius is a double-amputee athlete who made history by becoming the first Paralympian to compete against able-bodied athletes at the 2012 London Olympics.
Roux said Pistorius is a “broken man” who has “genuine remorse” after shooting Steenkamp four times through a locked toilet door early on Valentine’s Day morning last year.
As his lawyer chronicled how Pistorius has lost his friends and fortune, the sprinter uncontrollably wept in the dock, wiping tears off his face with a handkerchief.
State prosecutor Gerrie Nel attacked the defence claim that Pistorius is repentant, claiming he offered “blood money” to Steenkamp’s parents to reduce his likelihood of going to jail.
In South Africa, where a 24-hour news channel is dedicated to the athlete’s court proceedings and the top-selling book in stores is about Pistorius, Nel warned that Judge Masipa’s sentencing will be a litmus test of the strength of the country’s justice system.
Highlighting Pistorius’s gross recklessness, Nel said the only appropriate sentence for the athlete was incarceration.
“The minimum term that society would be happy with would be a 10 year minimum imprisonment sentence,” said Nel.
“This is a serious matter. The negligence borders on intent.”
Nel said a house arrest sentence would be “shockingly inappropriate” and would cause South Africans to lose faith in their legal system and turn to vigilantism.
Difficult decision for judge
“If the court sentence is too light, and society loses trust in the court, they will take the law into their own hands,” he said.
Legal experts are divided on which way Judge Masipa will swing.
“It’s quite a difficult decision to make for any judge,” said William Booth, a criminal lawyer based in Cape Town.
“There is a strong argument to be made for certainly a period of direct imprisonment,” said Booth. “You do have to send a message to the public.”
Yet even if Pistorius does not get sentenced to time in jail, Booth says that does not mean he will not be punished.
“I think he’s not going to walk out scot-free,” said Booth, pointing out that “correctional supervision is recognised as a fairly severe sentence.”
The Pistorius defence did well to underscore alternative penalties to prison and show that Pistorius is not receiving special treatment because of his celebrity status, said Kelly Phelps, a law lecturer at the University of Cape Town.
Despite being unpalatable to many South Africans, a sentence of house arrest is fitting for Pistorius, believes Phelps.
“Prison comes at a huge expense to any society, not just monetary but the social damage left in the aftermath of imprisonment,” she said.
After the sentence is handed down, both the state and defence can appeal, a legal process that could drag out for years.
Phelps believes the defence is unlikely to appeal unless Pistorius is given a stiff sentence.
The state can also appeal against Judge Masipa’s culpable homicide verdict, suggests Phelps.
Whatever the outcome, Pistorius has lost his glittering sports career, with the international acclaim, lucrative contracts and – above all – his hero status, tarnished forever.