A Vanderhoof man was sentenced Wednesday to a 23-month conditional sentence for the accidental but fatal shooting of his then fiancee nearly a decade ago.
The outcome means Kayne Sabbe Penner, 35, will remain confined to his property except when working or in the event of a medical emergency but will not serve the term in jail.
On Dec. 20, 2012, Penner was handling a .22-calibre semiautomatic rifle within the confines of his cousin's trailer home in the community 100 kilometres west of Prince George when it went off. The bullet struck April Johnson, 18, in the stomach and she later died in hospital.
The matter has hung over Penner's head for some time. It took roughly 2 1/2 years before charges were approved and another 1 3/4 years before it was taken to the first of two jury trials.
In March 2017, Penner was found guilty of manslaughter with a firearm and, in September 2017, he was sentenced to the "mandatory minimum" for the offence of four years in prison.
But in March 2019, the B.C. Court of Appeal ordered a new trial over concerns about the charge the trial judge issued to the jury prior to deliberations.
In March 2021, a second jury also found Penner guilty of the offence but, in September 2021, B.C. Supreme Court Justice Terence Schultes found the original sentence “grossly disproportionate” and that a term of 18 months to two-years-less one day would be appropriate.
From there, Crown and defence counsels presented arguments on how long the actual sentence should be and whether it should be served in the form of a conditional sentence - effectively house arrest - or in jail.
On Wednesday, Schultes said Penner was at fault for the incident but also noted a handful of mitigating factors in reaching his decision to issue a term of house arrest.
On the evening in question, Penner and Johnson were at the home of Richard Borne, a mobile home on the outskirts of Vanderhoof. A some point during the pre-Christmas visit with Borne and his girlfriend, they decided to go target shooting.
Borne retrieved the rifle from his bedroom and, because it tended to jam, took it outside to see if it would fire properly. When he came back inside, Borne either leaned the gun against a kitchen counter or handed it to Penner.
Either way, it was in Penner's hands when it went off. For the purposes of sentencing, Schultes found that Penner "committed several breaches of safe handling practices."
Schultes said it was "common ground" that Penner failed to assume the rifle was loaded, engage the safety mechanism, remove the magazine and control the direction of the muzzle.
At issue was whether Penner's finger was on the trigger or the gun had slipped from his grasp as he was checking the chamber for bullets and went off when it struck the stove top.
Schultes said he found the rifle went off by "some application of force by Mr. Penner to the trigger through his finger" and after he failed to adhere to the "off target, off trigger" process for safe handling of a firearm.
All had been drinking but with the exception of Borne, none were impaired. Nonetheless, Schultes said Penner should not have been handling the gun in an "atmosphere of intoxication" in which the gun's owner had misinformed him of its status as loaded.
(In 2017, Borne pleaded guilty to 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.)
Working in his favour, Schultes found Penner "fully acknowledged" he should not have consumed alcohol while handling the gun and "sincerely acknowledged" the harm he caused.
The "mechanical acts and omissions that led to this gun firing are what one would expect in an accidental discharge in the context of handling a firearm in anticipation of its recreational use," Schultes said.
The judge went on to note Penner's full cooperation with the police investigation, a lack of a previous criminal record, a strong work ethic and devotion to his family.
It took Schultes 1 1/2 hours to read out his decision, much of it devoted to whether his findings were in keeping with a section of the Criminal Code related to conditional sentences.
Penner was also ordered to perform 120 hours of community service work, issued a lifetime firearms prohibition and ordered to provide a DNA sample.
