Oscar Pistorius trial: 'society demands a prison sentence'

Defence lawyers fight for Oscar Pistorius's freedom but prosecution presses for at least ten years in jail

Oscar Pistorius's future was on the line in court today as the prosecution and defence made their closing arguments in his sentencing hearing.

Pistorius faces up to 15 years in jail after he was found guilty of culpable homicide last month for shooting his girlfriend Reeva Steenkamp on Valentine's Day in 2013. Judge Thokozile Masipa also found Pistorius guilty of one charge of negligently discharging a firearm in a crowded restaurant in Johannesburg in January 2013.

Defence lawyer Barry Roux described Pistorius as a "victim" and urged the judge to return a community-based sentence. He pointed to the final judgment, which found that Pistorius had genuinely mistaken Reeva for an intruder, and said that no punishment can be worse than the experiences he has suffered in the last 18 months. 

However, prosecutor Gerrie Nel said that the interests of society "demand a prison sentence" and that a minimum of ten years was required. He reminded the court of the "heart-wrenching" evidence given by Reeva's cousin Kim Martin. He ridiculed Pistorius for claiming that he was a victim and accused him of "shamelessly" using his disability as a mitigating factor.

Here is what we heard today:

11.25am: Prosecutor Gerrie Nel begins to pick apart the defence's argument about the attacks on Pistorius in the media. Judge Masipa interrupts to assure Nel that she will be disregarding those points. He argues that the only "reasonable sentence would be a long-term incarceration" and urges the court to let the Correctional Services department take responsibility for what happens to Pistorius after sentencing. If they cannot cater for him, then we come back to court, says Nel. He adds that "it is not even a contentious issue" because Correctional Services has made it clear that they can accommodate Pistorius's needs.

Nel says that the principle of uBuntu and restorative justice is "not a bad one" but is "not a principle that can be considered in this case at all". He says this is a matter so serious that the interests of society "demand a prison sentence". He agrees with the defence that Pistorius is unfit to possess a firearm again. Asked how long a prison sentence he is suggesting, Nel says that the "minimum that society will be happy with is ten years in prison". 

Nel completes his closing argument and Judge Masipa allows defence lawyer Barry Roux to put a few final corrections to the court. Roux notes that Pistorius does not have rails in his home but does have a bench in his bathroom instead. He points out that other serious cases of culpable homicide have resulted in restorative justice. Masipa adjourns the court after thanking both sides and telling the attorneys that she was "very impressed" by the way they have conducted themselves throughout the trial. Sentencing will reconvene on Tuesday 21 October.

11.00am: The fact that Pistorius is sorry Reeva is dead "is not remorse", says prosecutor Gerrie Nel. The accused, who coped "brilliantly" in life in spite of his disability, is now "shamelessly" using his disability as a mitigating factor, says the prosecution. Nel suggests that Pistorius uses his disability when it suits him. He tells the court his house has no railings in the shower or toilet, yet because he faces prison, he suddenly needs railings. "If that is so, then it is disingenuous," says Nel. A remorseful or anxious person would not go out to a nightclub, he adds.

The prosecutor praises the testimony of Zac Modise, acting head of South Africa's Correctional Services, and condemns that of defence witness Annette Vergeer, a social worker and registered probation officer. Vergeer, who painted a very negative picture of South Africa's prisons, gave the court a "sketchy", "outdated" and "negatively biased" report, says Nel. He tells the judge he was "flabbergasted" when Vergeer admitted that she based some of her report on a speech made in 2005. Would it not be a bad day if this court decided that our prisons are not good enough for extradition from other countries around the world, asks Nel.

10.45am: Prosecutor Gerrie Nel turns to the technical aspect of his argument. He claims Pistorius is guilty of "gross negligence", bordering on dolus eventualis, a murder charge that means the accused is responsible for the foreseeable consequences of his actions. Nel cites six points from the judgment that support his argument: the size of the toilet; the calibre of ammunition; the fact that a "reasonable person" would have realised the consequence of their actions; Pistorius knew someone was behind the door; he acted too hastily; and he used excessive force.

Nel suggests there are still aspects of the case that do not make sense and claims Pistorius did not act like a "reasonable person" from the moment he heard the window open. He says Pistorius did not ask whether Reeva had heard the noise in the bathroom nor establish whether she had heard him. Pistorius is "not a victim", says Nel. "He cannot be a victim, he caused it." The prosecutor imitates the accused: "I'm a victim, feel sorry for me, the media victimised me. When I wanted the media to capture my brilliant athletic performance, I loved them; when the media write about my trial it's unfair."

10.10am: Prosecutor Gerrie Nel takes the stand. Society's interests are at stake, he tells the judge. Society will want to know what happens if someone fires four shots through a door into a closed cubicle. We have thought about the accused for months, says Nel. Now is the time to think about the deceased.

Nel says that Reeva's cousin Kim Martin, who gave evidence earlier this week, was not only representing the family, she was representing society. He argues that of all the noises discussed in court – the screams, the cricket bat, the shots – it was the "softly spoken words" of Martin that "trounced" them all. Martin's "heart-wrenching" evidence gave insight into the impact of the crime, says Nel.

The prosecutor turns to the money offered by Pistorius to Reeva's parents. Nel says money for a sold car for the death of a loved daughter cannot be seen as a positive gesture. "The offer is nothing but an attempt to influence sentence," he says. Nel argues that the timing of the offer – made in between the judgment and the sentence – shows that the offer is "in fact something terribly negative".

9.50am: Roux quotes from Pistorius's 30-day mental health evaluation. He is not a danger to society, says Roux. His condition is also likely to worsen and the risk of suicide might increase if he does not receive proper medical care.

Roux reminds the court that Zac Modise, acting head of South Africa's Correctional Services, yesterday conceded the general section of a prison would not be suitable for Pistorius. Roux again raises concerns about the risk of disease if Pistorius is permanently detained in a hospital unit. His negligence needs to be balanced against his disability and vulnerability, says Roux. "There needs to be compassion." The attorney insists that a community-based sentence is a real punishment and is not restricted to the 16 hours a month proposed earlier this week.

In conclusion, Roux urges Judge Masipa to give "serious regard" to a community based punishment, restorative justice and to strive to put "some patches on the pain".

9.30am: Roux cites from other culpable homicide cases in which the perpetrators did not go to prison. He talks about a similar case in which a man heard a bathroom window being opened in his home and fired shots into a door, only to discover that it was his wife. In another case, an employer accidentally shot his helper's grandson in the head and was left emotionally devastated.

Pistorius was young at the time of the shooting, says Roux. He did not have the wisdom people gain in later years. Roux says that no punishment can be worse than his experiences in the last 18 months. "The denigration, the humiliation, the ridicule, the blame, the false allegations – ongoing, worldwide," says Roux. "That's what he was subjected to. He stands there, giving evidence and crying, knowing the whole world is watching. He was absolutely exposed."

Roux turns to the money offered to Reeva's parents. "It is not about the money," says the attorney. It is just showing the court that the accused is taking responsibility for his actions. June and Barry Steenkamp have said they do not want the lump sum offered by Pistorius and have said they will be paying back monthly sums paid to them over the last year. Roux suggests the court can order that the money now goes to charity. Pistorius is crying silently as Roux tells the judge: "He wants to make good as far as possible."

9.00am: Defence lawyer Barry Roux is presenting his closing argument. He begins by saying that it is "beyond any argument" that the loss of a child is "the greatest devastation". But he says it is necessary to look at the facts as found by the court. Judge Masipa has accepted that Pistorius genuinely, although erroneously, believed there was an intruder in the toilet, not Reeva. Roux quotes from the judgment, in which Masipa said Pistorius did not subjectively foresee that he would kill the person behind the door, let alone the deceased, as he thought she was in the bedroom at the time.

There was a "high degree of negligence", admits Roux. But he says this cannot be isolated and must be taken in the context of the individual. "Whatever way we see it, the accused's actions were to some extent dominated by vulnerability and anxiety," says Roux. There was not any "deviousness" or "conscious unlawfulness", he says. 

Roux notes that some members of society would want to see the maximum penalty imposed. Some would want the death penalty, he says. "But that is not the test." Roux says Pistorius must be sentenced with the "interests of society" in mind. On a slight tangent, Roux tells the court that a man on a bus had recommended he read a book called uBuntu and the Law by Nyoko Muvangua and Drucilla Cornell. The text, about the southern African concept of uBuntu, which roughly translates as humanity, explores the way in which restorative justice and compassion can be applied in law for the best interests of society.

The defence lawyer says that in the beginning there was "an accused and a victim". But he says "very shortly after this, the accused became the victim". Roux says he has "never, ever" seen such unfair attacks as on Pistorius shortly after the shooting. False reports, spread by media and social media, claimed he had crushed Reeva's skull with the cricket bat and that he was taking steroids. Roux says he can see why the National Prosecuting Authority refused to allow Shrien Dewani's trial to be televised. Pistorius was made to look at a photo of the deceased, whom he loved, before the image was published worldwide under the banner of "cold blooded murderer", says Roux. The "extreme emotions" suffered by the accused are not in dispute, says the lawyer.

Five questions for Judge Masipa

The sentencing hearing for Oscar Pistorius heard from six witnesses, including the athlete's personal psychiatrist, Reeva Steenkamp's cousin and the head of South Africa's Department of Correctional Services. The two sides have debated in detail the conditions Pistorius might face in prison and the extent to which the athlete feels remorse for killing his girlfriend on Valentine's Day last year. After being found guilty of culpable homicide and negligently discharging a firearm in a crowded Johannesburg restaurant, Pistorius's punishment could range from a suspended jail sentence and a fine to 15 years in prison.

Under South Africa's sentencing guidelines, Judge Masipa must consider the seriousness of the offences and the personal circumstances of the offender, as well as public interest. Quite separate from public opinion, this concerns deterrence, rehabilitation, protection and retribution.

Here are five questions she will need to consider:

Is a community sentence appropriate?

Two defence witnesses have recommended that Pistorius be placed under house arrest for three years, carrying out 16 hours of community service, such as cleaning, each month. Prosecutor Gerrie Nel repeatedly described the proposed sentence as "shockingly inappropriate", perhaps as a subtle reminder to the judge that under South African case law an appeal can be made on the grounds that a sentence is deemed "shocking, startling or disturbingly inappropriate". Reeva's cousin Kim Martin said Pistorius "needs to pay for what he has done" and that a community based sentence would enable him to think his actions were acceptable. "We need a message to society that you can't do this," she told the court.

Will prison cater to Pistorius's physical needs?

Annette Vergeer, a social worker and registered probation officer, claimed there were no baths available in prison and Pistorius risked falling on slippery cement floors, with no rails in toilets or showers. She even suggested he might have his prosthetic legs taken away from him. However, Moleko Zac Modise, the acting national commissioner of the Department of Correctional Services, flew into Pretoria to defend the prison service after hearing her claims. He said he could "confidently" confirm that nearby prisons had hospital units that could cater to Pistorius's disability.

Is prison safe for Pistorius?

Vergeer painted a very negative picture of South Africa's prisons, citing risks of gang rape, violence, disease and drugs. She claimed that Pistorius would be particularly vulnerable to these dangers because of his disability. Defence lawyer Barry Roux also read out claims from local media that Pistorius faced threats from gang leaders inside prison. However, Correctional Services insisted Vergeer's evidence is "inaccurate" and said that Pistorius would be placed in a hospital unit, possibly in a single cell, away from the general prison.

What would be best in terms of rehabilitation?

The defence has argued that a community based sentence would give Pistorius – a first-time offender – a far better chance of rehabilitation. Vergeer says prison would "break" Pistorius and "take away his future", while social worker Joel Maringa suggested prison would "destroy" the athlete. But the acting national commissioner of Correctional Services told Judge Masipa that rehabilitation was the aim in prison and that sessions such as anger management, counselling and skills development are offered to inmates.

Is Pistorius sorry?

Reeva Steenkamp's cousin Kim Martin told the court that she did not believe Pistorius's public apology to her family was "genuine" or "sincere". However, Dr Lore Hartzenberg, Pistorius's personal psychologist, insisted that his remorse and pain are genuine and that he has taken responsibility for the fact that Reeva died because of his "wrongdoings". The court heard that Pistorius had written to Reeva's parents to apologise shortly after her death, but their representatives advised him not to send the letters, and that he "desperately" wanted a private meeting with the family to apologise.

Oscar Pistorius sentenced for killing of Reeva Steenkamp – day four live

16 October

The sentencing of Oscar Pistorius resumed this morning, with the national commissioner of South Africa's Correctional Services testifying about the country's prison conditions. Moleko Zac Modise is the second state witness in the sentencing hearing, which is now in its fourth day. 

Pistorius faces up to 15 years in jail after he was found guilty of culpable homicide last month for shooting his girlfriend Reeva Steenkamp on Valentine's Day in 2013. Judge Thokozile Masipa also found Pistorius guilty of one charge of negligently discharging a firearm in a crowded restaurant in Johannesburg in January 2013. Nel is expected to call one or two more witnesses before Judge Masipa decides Pistorius's fate.

Here is what we have heard so far today:

1.00pm: The court reconvenes and prosecutor Gerrie Nel says he will not be calling any more witnesses.

His surprise announcement comes after an incident in the lunch break when Oscar Pistorius's sister Aimee was allegedly verbally abused by one of Reeva's friends Mikey Schultz. She was in tears after Schultz, a self-confessed killer, reportedly mouthed the words "f*** you" at her. Pistorius family apparently requested that he be barred from the court.

Schultz admitted killing mining magnate Brett Kebble in 2005 but was given indemnity from prosecution in exchange for testifying against another criminal. He told reporters outside court today that he is there only to support his friend Jared Mortimer, who was expected to give evidence about his run-in with Pistorius in a nightclub in July. Schultz denies saying anything to Aimee Pistorius.

Mortimer returned to court after the lunch break along with former football player Mark Batchelor, who testified against Pistorius earlier in the trial.

11.00am: Modise gives the court specific details about the conditions at the hospital unit at Kgosi Mampuru, a prison in Pretoria. The hospital has five communal wards, each with one shower and one bath. There are 22 single cells, with seven nurses during the day and two at night. There is only one resident doctor and five psychologists for 7,000 inmates, including the general section of the prison.

Defence lawyer Barry Roux asks how many people in the hospital unit suffer from tuberculosis. He cites from the National Health Laboratory Service, which says there is a "high rate" of TB in the country's prisons. Modise says the hospital has a "GeneXpert" machine that can identify TB and ensure that patients are isolated and provided with the right care. He points out that the risk of exposure to TB equally applies to general hospitals in the community.

Modise assures the court that Pistorius will "absolutely" be sent to a hospital unit, but he says that the athlete will still have to undergo an initial assessment of his physical needs when he is first detained. Roux raises concerns that a place in the hospital unit is therefore not guaranteed.

10.00am: Modise says overcrowding in South African prisons is down from 63 per cent to 31 per cent. He says "there should be no doubt in the minds of South African people" that Pistorius's needs can be accommodated.

Defence lawyer Barry Roux begins his cross-examination. Roux says that figures presented before parliament yesterday, from the Judicial Inspectorate of Prisons, showed that incidents of assault and torture have increased from 71 cases last year to 109 this year. There was also an increase in the use of force by prison officials against inmates, from just three cases in 2010 to 191 in 2014. Modise says the figures include a few private prisons, where the department has since intervened.

Roux asks Modise if he has heard about threats from prisoners against Pistorius. Modise has not. Roux says Khalil Subjee, the self-style "General" of the 26's gang, allegedly warned that Pistorius's wealth would not buy him a lavish prison lifestyle, and said he would be "taken out". Roux says he has been called by several prison wardens this week, who claim their prisons have no shower doors, that tiles are broken and that there are no baths in the general section of the jails. Modise denies that there are no shower doors, but confirms that the general section of the prison would be unsuitable for Pistorius. He thinks Pistorius should be accommodated in the hospital unit, which has baths and facilities to accommodate his disability. 

Judge Masipa adjourns for a tea break and thanks the court for the applause they gave her earlier when Nel wished her a happy birthday.

9.30am: Moleko Zac Modise, the acting national commissioner of Correctional Services, is painting a very different picture of South Africa's prisons to that presented by defence witness Annette Vergeer. There are sports and recreation facilities, including athletics, as well as anger management, life skills, family counselling, formal education and skills development, he says. Asked about the prison complaints system, Modise says officials have to deal with inmates' complaints daily and that there are independent assessors.

Modise admits that there are gangs within prisons, but it is an issue that they are trying to deal with. He says inmates can be placed in a single cell or in a hospital unit. Yes, South Africa's facilities are old, but they are arguably the best in Africa and even compare favourably with facilities in the UK and New York, says Modise.

Prosecutor Gerrie Nel refers to the evidence given by Vergeer claiming that there are no baths or rails in toilets and showers to help people with disabilities. Modise says this is not correct. Prisons have modified entrances, ramps, rails in toilets, showers and baths. The department deals with 128 disabled people on a daily basis, including inmates with partial and total amputation of their limbs, he says. Modise says that from time to time people do a "desktop exercise" in reviewing prison conditions, but it is important that people get into the facilities to get a "proper and informed" view of what the department is doing to improve them.

9.00am: Moleko Zac Modise, the acting national commissioner of Correctional Services, takes the stand. Yesterday his department issued a statement regarding claims made by defence witness Annette Vergeer. She cited disease, gang violence and rape as risks in jail and said that short-staffed prisons do not have the facilities for physically disabled people. Correctional Services said it had "noted with concern inaccurate serious allegations that sought to cast doubt on the state of our correctional centres". 

Nel confirms with Modise that only yesterday, by coincidence, he presented an annual report in parliament, where he confirmed that prisons are "ready to admit and detain people with disabilities in our facilities". The witness tells the court that there are facilities in the country that can deal with every kind of offender. A health assessment is carried out within six hours of admission to jail and Pistorius's prosthetic legs could not be taken from him without written instruction, he says.

8.45am: Prosecutor Gerrie Nel wishes Judge Masipa a happy birthday and says the court will try to make the day as "enjoyable as possible". He then resumes his questioning of witness Kim Martin, Reeva Steenkamp's cousin. Martin says she did not feel that Pistorius's apology at the beginning of the trial was "genuine" or "sincere". She says she is "very fearful of the accused" and has tried to put him out of her mind, even making a point of not mentioning his name in her home.

"I really believe the accused, Mr Pistorius, needs to pay for what he has done," she tells the court. Martin says her family are not "seeking revenge" but they feel that to take someone's life who is behind a door unarmed and harmless "needs sufficient punishment". Martin tells the judge: "Everyone has suffered here. We need to send a message to society that you cannot do this and get away with it." She suggests that a community based sentence would enable Pistorius to feel that what he had done was acceptable.

Answering a few short questions from defence lawyer Barry Roux, Martin says she was not aware that Pistorius had written comprehensive letters of apology to Reeva's parents, which were not handed over on the advice of a Steenkamp family representative. Roux asks how Martin would feel about Pistorius going to prison if the conditions are not humane. "I would not want that for anybody," she says. Roux tells the court that Pistorius "desperately" wants to make a private apology to the family. Martin stands down.

 Oscar Pistorius sentencing: what the judge has heard so far

15 October

Reeva Steenkamp's cousin Kim Martin "hoped to god" that Oscar Pistorius was cheating when she first heard on the radio that he had killed his unnamed girlfriend. In an emotional day in the Pretoria court, Martin emphasised the impact of Pistorius's crime, describing how Reeva's death had "ruined" her family. The victim's parents and friends broke down in tears as Martin spoke about growing up with Reeva and her cousin's achievements.

As the first witness for the prosecution, Martin's testimony marked a sharp change in focus from the defendant to the victim. Over the last few days, four defence witnesses have described the affect of the shooting on Pistorius and offered reasons why he should be handed a non-custodial sentence. The prosecution is expected to hear from two or three more witnesses.

Their mitigating evidence will be taken into account by Judge Thokozile Masipa, who is expected to sentence Pistorius later this week. Last month Masipa cleared Pistorius of murdering his girlfriend Reeva Steenkamp on Valentine's Day last year and convicted him of the lesser charge of culpable homicide. He was also found guilty of negligently discharging a firearm in a crowded restaurant in Johannesburg in January 2013. His punishment could range from a suspended jail sentence and a fine to 15 years in prison.

Here is what the first five witnesses have told the court:

Dr Lore Hartzenberg: Pistorius's personal psychologist gave an insight into the grief and trauma counselling sessions she held with the athlete. Hartzenberg insisted Pistorius's remorse and pain were genuine. "We are left with a broken man who has lost everything," she told the court. She said Pistorius had not mentioned any plans to resume his athletic career but had expressed a desire to work at a school in Mozambique.

Joel Maringa: The Department of Correctional Services social worker recommended that Pistorius undergo three years of house arrest and community service rather than a prison sentence. He suggested 16 hours a month of domestic cleaning. "We are basically not saying that he should be destroyed because he will still be coming back into the community," he told the court. Prosecutor Gerrie Nel described the suggested sentence as "shockingly inappropriate".

Peet van Zyl: Pistorius's agent rattled off a long list of his client's charity work, including personal donations to help people in need of prosthetics and support for Unicef and other major charities. Pistorius was also due to launch his own charitable foundation in July 2013, said Van Zyl. He confirmed that all of Pistorius's sponsorship contracts had now been officially terminated. In cross-examination, Nel pointed out that charity work was common practice for sportsmen and accused Van Zyl of viewing his client as a "poor victim" in the case.

Annette Vergeer: The social worker and registered probation officer told the court she thought it was "highly unlikely" Pistorius will reoffend and claimed that prison facilities would not cater to his needs. She cited overcrowding, drugs, violence and rape as risks in jail and said that short-staffed prisons do not have the facilities for physically disabled people. Prison would "break him as a person", she told the court. However, under pressure from Nel, Vergeer admitted that her findings were not necessarily applicable to every prison in the country and was partly based on information from up to nine years ago.

Kim Martin: Reeva's cousin broke down in tears as she recounted the moment that she heard on the radio that Pistorius had killed his then unnamed girlfriend. Martin said she froze and said to her husband: "I hope to god he is cheating on Reeva." Earlier in the afternoon, Martin described how she and Reeva had grown up together and how Reeva's parents were always financially strained, despite working very hard. She told the court that losing Reeva was the worst experience she had ever been through and said it had "ruined" her whole family. "It has ruined Aunty June and Uncle Barry," she told the court. "Reeva was everything to them."