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Fame wins over justice.

max_tranmere wrote:

> I've never understood the reduction in sentence thing. If
> you're given 5 years you should do five years, how can someone
> do half or less of that and it is 'sentence served'? If I owed
> someone ?100 I couldn't give them ?50 or less and it would be
> 'debt cleared' would it?

The previous comments about both the incentive for good behaviour and the person being more likely to settle into a good normal life if not away from it for too long are both valid however there is also the stark fact that most prisons right across the world are beyond their intended capacity ......

If you are interested in penal systems in other countries, you should catch this on BBC iPlayer.



The toughest prison in Russia, located in the middle of a forest that's larger than the size of Germany, seven hours drive from the nearest city.

Fascinating programme.

Everyone here seems to be assuming Oscar will not serve his five years and
just do the 10 months. We don`t know that and, in fact, I am sure Gerry Nel,
the tough and very good prosecutor, will fight any attempts to release
Pistorius. I would have liked him to have a longer sentence, but since he was
not found guilty of murder, the sentence seems to reflect the South African
tariff for manslaughter as opposed to first-degree homicide.

There is no question penal incarceration is going to be a huge shock to Oscar`s
system, a basically spoiled rich kid who liked playing with guns and showing
off his blonde girlfriends. This may bring his ego down to size.

So far as I know - and I have travelled South Africa extensively and as recently
as last year - their prisons are pretty tough. Not on the Russian level but I
know they usually make English ones seem ripe for pussies.

When he recieved 5 years I thought that was too light a sentence, but then to be told he will probably serve 10 months I was appalled!

The worst part will be the book deal and media deals where he tells his story (not the truth that's for sure) where he will make money.

I wish there could rulings made prohibiting this course of action.

I think the sentencing was lenient, but not extraordinarily so. He's been convicted of culpable homicide, meaning they see the killing as a mistake. If you or I kill someone by mistake and convicted of manslaughter, we could get anything from life to no imprisonment at all dependent on the circumstances. But, usually, it's between 2-10 years. Pistorius falls within what is normal in the UK.

I guess we see it as outrageous because we all still think he murdered Reeva. I think he did as do most people I've spoken too about it. Trouble is, it was hard to prove for certain and so the judge had to do the sensible and fair thing.

First, "mistake" is not an appropriate word to use for culpable homicide.

The difference between culpable homicide and murder is as follows "if it is shown that a man ought to have foreseen the possibility of killing someone when he fired a gun, negligence is present and he is guilty of culpable homicide. If it is shown that he must have foreseen the possibility of death resulting from his actions or that he intended to kill, intention is proved and he is guilty of murder."

It is perhaps worth pointing out in your comparison with manslaughter in the UK, that the lower end of the sentencing regime is usually given out for cases in which, say, someone punches an individual and they hit their head on the pavement or they are defending themselves against an onslaught etc. etc.

As far as I know the lower end of the sentencing possibilities in the UK is not used for people who pump bullets into a bathroom without even asking if it is their girlfriend in there.

The sentencing has rightly been seen as outrageously lenient by UK standards.

David Johnson wrote:

> As far as I know the lower end of the sentencing possibilities
> in the UK is not used for people who pump bullets into a
> bathroom without even asking if it is their girlfriend in
> there.


You miss the point in a spectacular way.

Pistorius admits he knew that SOMEONE was in the bathroom.

But the judge ruled that when he pumped bullets into the bathroom he didn't foresaw the possibility of killing someone, even though he admitted he knew someone was in there.

It's this ruling that's seen as outrageous, not the sentence as you claim.

If you accept the judge's ruling then the sentence isn't outrageous at all.

Sam Slater is right, given the judge's ruling, the sentence isn't particularly lenient.

You say that "mistake" is not an appropriate word to use for culpable homicide, but "mistake" is exactly the word that the judge used to describe what happened.

Your comment "without even asking if it is their girlfriend in there" shows that you believe that Pistorius would have been OK to do what he did if he HAD checked if it was his girlfriend in there.

So David Johnson sides with the judge's outrageous ruling.

But in an act of hypocricy he then tries to argue that the sentence which followed was inappropriate.

In fact once the judge made her ruling that kind of sentence was pretty inevitable - and on the basis of the judge's ruling even the victim's family have accepted that the sentence was a fair one.

Perhaps we should blame the prosecution. After all it was not the prosecution?s case that Pistorius foresaw that he was going to kill someone. Instead the state prosecutor opted to try and prove that Pistorius intended to kill Steenkamp. They therefore made their own case unnecessarily difficult.

When Judge Masipa announced her verdict she said she focused on whether Oscar foresaw the possibility of killing Reeva behind the door and she concluded that he couldn't possibly have foreseen the possibility of killing Reeva, because at that point in time he thought she was in the bedroom. But he had made a mistake.

In line with David Johnson's argument the judge stated that Oscar should have checked if it was Reeva in there.

Surely the judge was asking the wrong question?

Should not the right question have been, did he foresee the possibility of killing whoever was behind the door? That may have yielded a different answer.

Sam Slater is right when he said that we see it as outrageous because we think he committed murder. Not because there was anything wrong with the sentence for culpable homicide.

So is this fixable on appeal?

The prosecution is entitled to appeal only on questions of law. This is a somewhat complicated area, but if the judge was asking the wrong question it would appear to be a mistake of law. On the other hand it could be argued that the judge was asking the right question because the prosecution's argument was that Pistorius murdered Steenkamp.

The judge decided that Oscar thought Reeva was in the bedroom - this was presented as a factual finding. So if the prosecution on appeal has to stick to it's case that Steenkamp was the intended victim then it's hard to see how this finding of fact can be overturned and the appeal must fail.

The prosecution must hope that their original case isn't held to preclude the possibility that Pistorius intended to kill whoever was in the bathroom. Or that he foresaw the possibility that the bullets he fired would kill whoever was in the bathroom. So much depends on how the appeal court views the prosection argument.

Since the state pursued the line that Steenkamp was the intended target of the gunshots, it's possible that an appeal court will hold that the judge was ruling entirely in accordance with the prosection's claims. So the prosection must argue that it's implicit in their case that if it wasn't Steenkamp behind the door it makes no difference because there was still an intention to kill the person who was there, regardless of that person's identity.

The question to be decided is whether the proecution has proven beyond a doubt that the appellant subjectively foresaw the possibility that his actions would result in the death of the deceased, and nevertheless persisted in his conduct. It would be an easier question to determine if the prosecution hadn't maintained all along that the deceased meant Steenkamp.

The prosection has to change tack now. Will the appeal court accept that change of direction?

Thanks for that, James. I was going to make the same points but couldn't be arsed. David just gets confused when it comes to my posts which I put down to his desperation in trying to undermine everything I say due to his long-standing stance that I'm someone who needs knocking down a peg or two.

My thoughts on this are clear. The 'mistake' the judge was referring to wasn't 'mistakenly killing someone/anyone' but mistakenly killing Reeva.

The must have/ought to difference between murder and culpable homicide, which David talks about does not contradict my thoughts at all. The judge decided that while Pistorius ought to have known there was a chance he could kill Reeva by shooting into the bathroom (meaning culpable homicide), it doesn't mean he must have known if his defense was that he thought she was behind him in bed, in a totally different direction to where he was aiming and firing.

Like I said, I don't buy Pistorius' version of events for one minute. But I realise that, as a judge, she could not convict him of murder as there was enough doubt about his real intent.

Here are two scenarios which, I think, would show the difference between 'ought to have' and 'must have' known/foreseen there was a chance of killing Reeva:

1. Pistorius uses the excuse: "We had a fight and she ran into the bathroom and locked the door. I fired through the door to scare her into letting me in. I hit her unintentionally and killed her but didn't mean to." In this scenario, he must have known there was a chance he could have killed her by firing into the bathroom.

2. Pistorius uses the excuse: "I left Reeva in bed and when I came back I heard someone in the bathroom. I was scared thinking it was an intruder and shot through the door. I didn't realise that while I was gone for a few minutes it was Reeva in the bathroom." In this scenario, he ought to have known there was a chance it could have been Reeva and killing her......but not must have known. 'Must have known' implies he knows she's in the bathroom, which he didn't (or at least says he didn't).

Again, I think it's bullshit, but would I be certain enough to convict a man to a murder charge? I don't know. I can see why the judge didn't and with that, while I still think the sentence was lenient (as I said in my first sentence in the post David has issues with), I don't think it is extraordinarily so.

I cannot for the life of me understand why my thoughts on this are so outrageous I need pulling up on them. Obviously, David is trying harder to be a contrarian when it comes to me. It makes sense given his recent uncalled for attacks and attempts to cause divisions between me and other forumites.

"You miss the point in a spectacular way."

Not surprisingly, I don't agree.

"Pistorius admits he knew that SOMEONE was in the bathroom."

Correct. I know. I don't think either of us believe he was clearing out spiders from the bath, do you?

" But the judge ruled that when he pumped bullets into the bathroom he didn't foresaw the possibility of killing someone, even though he admitted he knew someone was in there."

Correct. I know. That is why my post includes the following ""if it is shown that a man ought to have foreseen the possibility of killing someone when he fired a gun, negligence is present and he is guilty of culpable homicide. ". According to the judge he did not foresee the possibility of killing someone.

" It's this ruling that's seen as outrageous, not the sentence as you claim."

I suspect both are viewed as outrageous. In your comments please remember exactly what I stated which was "The sentencing has rightly been seen as outrageously lenient by UK standards."


"If you accept the judge's ruling then the sentence isn't outrageous at all."

Again, I think it difficult to accept the ruling. Once again the sentence is outrageously lenient by UK standards.

"Sam Slater is right, given the judge's ruling, the sentence isn't particularly lenient. "

Again, Sam Slater states "If you or I kill someone by mistake and convicted of manslaughter, we could get anything from life to no imprisonment at all dependent on the circumstances. But, usually, it's between 2-10 years. Pistorius falls within what is normal in the UK."

He implies it is not particularly lenient in that it falls within "what is normal in the UK" If rather bizarrely Pistorius was found guilty of manslaughter in the UK, the sentence would have been far greater.

"You say that "mistake" is not an appropriate word to use for culpable homicide, but "mistake" is exactly the word that the judge used to describe what happened."

I am not sure the contextual setting for the judge's use of the word "mistake" i.e. was it a mistake that he killed his girlfriend? that you refer to. However, having stated yourself that he knew someone was in the bathroom, clearly firing a number of bullets into a bathroom cannot be a "mistake" in terms of intending to do serious damage to whoever is in the bathroom. In short I agree with your comment below. It was the wrong question to concentrate on whether Pistorius believed it was Reeva there.

"Your comment "without even asking if it is their girlfriend in there" shows that you believe that Pistorius would have been OK to do what he did if he HAD checked if it was his girlfriend in there."

No this is a complete misinterpretation of my view. Again surely what you would expect, is someone would shout out who was there in the bathroom. Tell them you have a loaded gun, Phone the police etc. etc. And if then attacked or threatened visually i.e. opening door with some kind of weapon, to defend yourself. If the reply was "Don't shoot, it's Reeva, end of story.

"So David Johnson sides with the judge's outrageous ruling. "

This is another misinterpretation based on what I have just stated.

"But in an act of hypocricy he then tries to argue that the sentence which followed was inappropriate."

I will ignore your "act of hypocrisy". You are obviously smarting about something. Once again the whole premise of your argument is incorrect. To restate once again, I think the sentencing is incredibly lenient by UK standards. I also believe that the wrong questions were considered in coming to the no murder conviction.

"In fact once the judge made her ruling that kind of sentence was pretty inevitable - and on the basis of the judge's ruling even the victim's family have accepted that the sentence was a fair one."

This is incorrect on two grounds.

1. Since you appear keen to refer to the judge's statement, here's one for you "Judge Masipa made clear in her sentencing, which lasted around an hour, that ?there may be more than one appropriate sentence in a case. An appropriate sentence by a trial judge need not be the only appropriate sentence.?"

2. I think it is stretching it to argue that the sentence was a fair one in terms of what the Steenkamp family believed. The family believed that he should have been convicted of murder. I guess they were being somewhat circumspect post sentencing for culpable homicide in case the prosecution decided to appeal. Stating that the sentence was a sheer travesty would probably be viewed by the prosecution as not the best approach with a potential appeal coming up.


"Perhaps we should blame the prosecution. After all it was not the prosecution?s case that Pistorius foresaw that he was going to kill someone. Instead the state prosecutor opted to try and prove that Pistorius intended to kill Steenkamp. They therefore made their own case unnecessarily difficult."

Maybe,

"When Judge Masipa announced her verdict she said she focused on whether Oscar foresaw the possibility of killing Reeva behind the door and she concluded that he couldn't possibly have foreseen the possibility of killing Reeva, because at that point in time he thought she was in the bedroom. But he had made a mistake."

In line with David Johnson's argument the judge stated that Oscar should have checked if it was Reeva in there."

Correct.

" Surely the judge was asking the wrong question?"

Correct. That is why I do not agree with either the judge's verdict or the sentencing as I stated.

"Should not the right question have been, did he foresee the possibility of killing whoever was behind the door? That may have yielded a different answer."

Correct.

"Sam Slater is right when he said that we see it as outrageous because we think he committed murder. Not because there was anything wrong with the sentence for culpable homicide."

"We" does not include me. I see it outrageous even for culpable homicide given apparently Pistorius could be out in 10 months and then have house arrest.

" So is this fixable on appeal?"

No idea.