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State applies for leave to appeal Pistorius sentence

09 Dec 2014, 23:04 IST

The state presented its application for leave to appeal South African athlete Oscar Pistorius's sentence and conviction at the North Gauteng High Court in Pretoria Tuesday.

Pistorius shot and killed his girlfriend Reeva Steenkamp through a locked bathroom door at his house Feb 14, 2013, but argued that he fired the shots thinking there was an intruder in his house. The state wanted him convicted of murder but the court found him guilty of capable homicide and sentenced him to five years' imprisonment.

Tuesday, State Prosecutor Gerrie Nel told the court that they have good reasons to believe that the Supreme Court of Appeal will find that the five-year jail term was shockingly inappropriate for the crime committed.

"We are appealing the acquittal on the conviction of murder," Xinhua quoted Nel as saying.

"An innocent woman was shot and killed in the most horrendous circumstances," he said.

"This is not an instance where shots were fired and someone died. Her death was caused by gross negligence of the respondent."

Nel, however, admitted that the prosecution was fully aware that its application for leave to appeal in the Oscar Pistorius case was not an easy task.

"It is never an easy task to bring an application for leave to appeal. We do it with uttermost respect for the court.

"It was not a decision lightly taken," Nel said.


According to the South African law, the state can only appeal against a trial court decision on a question of law, which simply means where the state can prove that the law was not correctly applied.

Nel argued that the court failed to properly apply the law dealing with Pistorius's intent when he fired four shots through a bathroom door knowing very well there was someone inside.

"We feel that the court may have erred in the application of dolus eventualis to the facts of the matter and particularly where the court found that the accused acted in self-defence," Nel argued.

The law of dolus eventualis states that it is enough to convict someone for murder if he foresees that his actions might cause death, but goes ahead to act in a way that results in loss of life.

Nel also argued that the five-year jail term given to Pistorius was shockingly inappropriate, and said the state was convinced that the Supreme Court of Appeal would find that the sentence was improper when weighed against Pistorius's gross negligence in this case.

Under South African law, Pistorius will spend only 10 months in prison before being released to serve the rest at home under correctional supervision.

"I do not have to convince this court that the sentence is shockingly inappropriate.

"I however say that there is a very good prospect that we may convince the appeal court that the shortest possible period of incarceration in a situation like this is shockingly inappropriate and therefore we say that we have made out a good case for leave to appeal on sentence," Nel told the court.

He also added that the court over-exaggerated the element of mercy in sentencing resulting in a sentence that did not fit the crime committed.

However, defence lawyer Barry Roux dismissed the state's argument insisting that the court appropriately applied the law. He told judge Thokozile Masipa that the state was in fact, appealing on the grounds of factual findings.

"The problem is that the state does not like nor appreciate your factual findings and are saying they are incorrectly applied.

"I will ask them to read your judgement and to say what part of your judgement on a legal position is wrong," Roux said.

Pistorius, his family members and those of Reeva were all not in court Tuesday. Judge Thokozile Masipa will hand down her judgement on the state's application Wednesday.

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