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Judge overturns mandatory minimum sentence in Vanderhoof manslaughter case

Four years in jail would be ‘grossly disproportionate’ judge rules
prince-george-courthouse6
A court in the Prince George courthouse is seen in an undated file photo.

A Vanderhoof man convicted of manslaughter in the shooting death of his 18-year-old fiancée won’t face the mandatory minimum sentence of four years in jail.

On March 6, 2021, a jury found Kayne Sabbe Penner, 34, guilty of manslaughter with a firearm in the Dec. 20, 2012 unintentional shooting death of April Johnson. Penner was previously convicted in March 2017, but in 2019 the B.C. Court of Appeal ordered a retrial over concerns about the charge the judge gave to the jury.

During a sentencing hearing in September, Penner’s lawyer argued that, given the circumstances of the case, the four-year mandatory minimum sentence would be a “grossly disproportionate” sentence and should be overturned.

In a judgment issued on Friday, B.C. Supreme Court Justice Terence Schultes agreed, saying that in his view a sentence between 18 months to two years, less one day, in jail would be appropriate, in the absence of the mandatory minimum.

“To be sure, denunciation and deterrence must loom large in such cases. But that does not mean the individual nature of the sentencing process can be cast aside,” Schultes told the court. “A person cannot be made to suffer a grossly disproportionate sentence simply to deter others.”

Manslaughter covers cases ranging from “near accidents” to “near murder,” he said.

“I conclude that Mr. Penner’s blameworthiness falls toward the lesser end of the spectrum,” Schultes said.

In addition, he said, Penner immediately rushed Johnson to the hospital, cooperated with the police investigation and has expressed remorse to the court and Johnson’s family for what happened. Since the shooting he has stayed out of legal trouble, started a family with his common-law wife and worked to support that family as a garbageman.

Schultes did not issue a sentence for Penner on Friday, instead putting the matter off to February to allow Penner’s lawyer to make an argument for a suspended sentence rather than jail time. Normally a suspended sentence – where a convicted person serves a period of probation instead of doing jail time - wouldn’t be allowed for a manslaughter conviction.

FINGER ON THE TRIGGER

During the trial, Schultes and the jury were presented with two versions of how Penner came to be holding the .22 lr semi-automatic rifle that claimed Johnson’s life, and how it went off.

Both the Crown and defense agreed that Penner and Johnson were visiting the trailer of Penner’s cousin Richard Borne on Dec. 20, 2012. Borne’s girlfriend was also in the trailer. Borne suggest they take his rifle and go do some target shooting at his parent’s property.

Everyone had been drinking, although evidence from a police officer who interviewed Penner on the day of the shooting suggested that he wasn’t intoxicated.

Borne went outside, loaded and test-fired the rifle at a tree behind the trailer. Then he came into the trailer with the rifle, put down it down in the kitchen and began to mix a drink.

Evidence gathered at the trailer in 2012 showed the rifle had a loaded magazine in it, and the safety was off.

In the version of events presented to the court by the Crown, Penner than picked up the rifle and while working the action contacted the trigger with his finger and fired the rifle, hitting Johnson, who was standing a short distance away against a doorway.

Penner’s lawyer argue that, in fact, Borne handed Penner the rifle and told him something which indicated the rifle was safe. Penner then went to check the action was empty, dropped the rifle and it went off after striking either the kitchen counter or some object on the counter, his lawyer said.

During the proceedings, the Crown called an RCMP firearms expert who had drop-tested the rifle, and was unable to get it to fire when dropped, even when dropped from four feet. In addition, police photos from the trailer at the time of the shooting don’t show any objects which could have potentially contacted the trigger when it fell.

Evidence from the doctor who treated Johnson showed that the bullet struck Johnson at a height of 122 centimetres, and then travelled slightly downward through her body. The entry wound was 22 cm higher than the level of the kitchen counter.

In his judgment, Schultes said he found the Crown’s version of events – supported by expert testimony – to be more plausible.

“I do not believe I can rule out his finger being on the trigger,” Schultes said. “I am hard pressed to envision the rifle falling, hitting an object, and firing. It is the only reasonable inference, from the evidence.”

Regardless of which way it happened, Penner committed multiple errors when handling the firearm – including failing to check the rifle was safe, failing to remove the magazine and failing to keep the muzzle pointed in a safe direction, Schultes said.

“Mr. Penner used the rifle in a careless manner, and failed to practice his duty of care,” he said.

Borne, who owned the rifle, was convicted in 2017 of careless use or storage of a firearm and possession of a firearm without a license for his role in the incident. He was given a 90-day conditional sentence.