A lawyer for the Vanderhoof man convicted of manslaughter in the unintentional shooting death of his 18-year-old fiancé says the mandatory minimum sentence of four years in prison is “grossly disproportionate” and should be overturned.
On March 6, a jury found Kayne Sabbe Penner, 33, guilty of manslaughter with a firearm in the Dec. 20, 2012 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.
Penner was handling a .22 semi-automatic rifle in the kitchen of his cousin’s single-wide trailer home in Vanderhoof when the gun went off. The court heard conflicting evidence about how Penner came to be holding the rifle and how it went off. The bullet struck Johnson in the stomach and she later died in the hospital.
During a sentencing hearing on Thursday and Friday, the legal team for the Crown asked the court to impose the minimum four-year sentence for manslaughter when a firearm is involved. Penner’s lawyer said if the mandatory minimum weren’t in place, a sentence of two years would be appropriate in Penner’s case and the mandatory minimum should be struck down.
“Double the amount of custodial time should be considered grossly disproportionate,” Penner’s lawyer said. “He has always taken moral responsibility for the death of his fiancé. There is no suggestion that separating Mr. Penner from society is necessary.”
B.C. Supreme Court Justice Terence Schultes was expected to set a date to deliver his ruling later this month.
On Friday, Penner offered an apology to Johnson’s family.
“I loved April very much. We lived together. We planned to have children and get married,” he said. “I am heartbroken (about her death.)”
Penner was interrupted by a member of Johnson’s family, who shouted “if you had any conscience, you’d have plead guilty,” before being ejected from the courtroom.
Earlier in the proceedings, Johnson’s mother Nadine Ryerson gave a victim impact statement and said the lengthy court process has been hard on her family.
“It has been almost a decade. I just wanted it over,” Ryerson told the court. “It is (still) painful and difficult to think about losing April.”
Ryerson described her daughter as “a ray of sunshine” who was loving and friendly.
“The Lord has been my refuge and my strength,” she said. “We are healthy, and I believe there is a beautiful place in heaven where April is peaceful… and still singing.”
In 2017, Penner’s cousin Richard Borne, who owned the rifle, was convicted 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.
Details in question
In summarizing the evidence presented to the jury in the case, the Crown prosecution team said there is conflicting evidence about what happened on Dec. 20, 2012 that led to Penner holding the rifle.
Penner, Johnson, Borne and one other person were in Borne’s home on Dec. 20, 2012. The group had been drinking, the Crown prosecutor said. Johnson’s blood alcohol level when she was admitted to the hospital was consistent with her having had at least three drinks and Borne admitted to police he’d been drinking.
The RCMP officer who initially responded to the case testified that he smelled alcohol on Penner as well, but that Penner did not appear intoxicated.
The timeline of events laid out by Penner’s lawyer during the sentencing hearing was that Borne handed the rifle to Penner and said something which indicated the rifle was unloaded and safe.
Evidence from the scene showed there was a loaded magazine in the rifle and the safety was not engaged, the Crown prosecutor said
According to the defense’s proposed timeline, Penner went to check the rifle by using his right hand to open the bolt. When he did, he dropped the rifle, which struck the kitchen counter and fired.
“He did not own the weapon, nor did he load it. He handled it for mere seconds,” Penner’s lawyer said. “Mr. Penner said…. that Mr. Borne handed him the rifle directly. It diminishes the opportunity for Mr. Penner to take steps to ensure the rifle was safe before handling it.”
If Penner was using his right hand to open the bolt of the rifle, it couldn’t have contacted the trigger, he added.
However, the Crown prosecutors said Penner gave conflicting statements about what happened to the police in a series of interviews.
“There is a considerable amount of uncertainty in his statement about what actually happened. He has essentially given four versions of the same thing,” the prosecutor said. “I am not suggesting he is fabricating or lying, he just doesn’t know. (But) Mr. Penner’s statement is not consistent with the evidence.”
Conflicting testimony given during the trial suggested that Penner may have picked up the rifle himself, from where it was leaning against a cupboard, the prosecutor told the court.
An RCMP firearms expert conducted drop tests with the rifle and was unable to get it to fire even when dropped from heights of up to four feet, the prosecutor said. Police photographs taken on the scene don’t show any objects on the counter which could have contacted the trigger as the rifle fell, he told the court.
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.
There was no evidence that Johnson was crouching or kneeling at the time she was shot, he added.
“The height and angle of the bullet are not consistent with the rifle being dropped on the counter,” the prosecutor said. “The only reasonable explanation for the discharge of the gun is that Mr. Penner had contact with the trigger.”
The Crown legal team rejected the argument that Penner’s case was exceptional enough to warrant throwing out the mandatory minimum sentence set out in law.
“The legislation says that those who pick up a gun have a responsibility to handle it carefully,” the second prosecutor on the case said. “It is hard to imagine (a four-year sentence) is grossly disproportionate for this careless use of a firearm with an entirely predictable consequence. Because of lack of attention, a lack of careful conduct, another person’s life was lost.”