A Vanderhoof man a jury convicted earlier this year of manslaughter for using a firearm in the death of his fiancee was sentenced Wednesday to the mandatory minimum of four years in prison.
In issuing the decision at the Prince George courthouse for Kayne Sabbe Penner, 29, B.C. Supreme Court Justice Paul Pearlman dismissed a defence counsel application under the Charter of Rights and Freedoms for a lesser sentence on the basis the term would be cruel and unusual given the circumstances.
Although he said he would have sentenced Penner to three years had the offence not carried a mandatory minimum, Pearlman was not persuaded four years was grossly disproportionate. The term "would not shock the conscience of Canadians and does not constitute cruel and unusual punishment," he concluded.
Penner was sentenced for the Dec. 20, 2012 shooting death April Johnson, 18. He was handling a .22-calibre semiautomatic rifle within the confines of his cousin's mobile home when it went off. The bullet struck Johnson in the stomach and she later died from the wound.
Given he has a wife with whom he has two young children and is the primary breadwinner, Pearlman agreed with defence counsel Dave Jenkins' argument that the sentence will impose a hardship. He also found Penner is remorseful.
But Pearlman concluded that was not enough to overcome the aggravating factors in the case. He noted Penner "chose" to check the gun in a confined space with three people nearby – Johnson, Penner's cousin, Richard Borne, and his girlfriend, Patricia Heichert – and without first removing the magazine and checking to see if the safety was on.
To find Penner guilty, Pearlman said the jury must have concluded Penner's decision "gave rise to an inherently dangerous situation that constituted a marked departure from the standard of care to be expected of a reasonable person in the circumstances of this case."
During the trial and during the hearing on the Charter application afterwards, Jenkins raised the possibility that Penner's finger was not on the trigger when it went off but rather may have touched a clutter of items on the kitchen counter, notably a claw on a cast-iron figure of an eagle.
But Pearlman noted a firearms expert found the gun was not prone to discharge and the "slightly downward" trajectory of the bullet contradicted that scenario and inferred Penner's finger was on the trigger when it went off.
Borne owned the gun in question. When Johnson suggested the group go target shooting, Borne retrieved it from his bedroom, went outside onto the porch and fired a round to see if it was in working order. He then brought it back inside, leaned it against the kitchen counter and said it was "good to go."
In August, Borne was sentenced to 90 days of house arrest and issued a 10-year firearms prohibition on count each of careless use or storage of a firearm and possession of a firearm without a licence.
Pearlman's decision drew a sigh of relief from the five friends and family of Johnson who attended the hearing. A shaken Penner kissed his wife and gave his goodbyes to his two children before he was led out of the courtroom.
"I'm just very sorry for the accident and what happened," Penner said when given a chance to speak prior to Pearlman giving his decision. "I never meant for anything like that to ever happen and I'm just very sorry that anyone got hurt by it. I'm just very scared and just very sorry."
