Judge Josiah Wood has lots of reading to do this month.
The Duncan provincial court judge could set legal precedence by deciding if his sentencing options — in this case, for convicted local Mountie David Pompeo’s aggravated assault of Chemainus’ Bill Gillespie — can include a conditional discharge or a conditional sentence order.
Both are not current choices for an aggravated-assault conviction under the Canadian Criminal Code.
Crown lawyers Carmen Rogers and Lesley Ruzicka explained — after dense deliberations Thursday and Friday — Pompeo and his lawyer, Ravi Hira, are challenging Pompeo’s right to those sentence choices under Canada’s Charter of Rights.
Wood said he had to make “a number of determinants” about constitutionality in the complex case.
Based on his looming homework, Wood said he’d “try and be specific” when advising Crown and defence about his ruling by month’s end.
A date for Pompeo’s sentencing will be fixed Nov. 19 in Duncan court.
The maximum prison sentence he could get for shooting and wounding an unarmed Gillespie, on the night Sept. 18, 2009, is 14 years.
Crown is seeking 18 months to two years less a day.
“A sentence doesn’t have to be long to be severe,” noted Wood.
Ideally, Hira wants a conditional discharge for Pompeo, 33.
If that’s unavailable, he’d settle for a suspended sentence. If that’s unavailable, a conditional sentence — or finally, if need be, a 90-day intermittent sentence served in the community, Rogers explained.
Ruzicka, a member of B.C.’s prosecution-support unit, told the court if a conditional discharge were available in Pompeo’s case, it would be contrary to the public interest.
And that ruling, she noted, could then apply to other serious crimes, such as attempted murder with a weapon, and torture.
Friday’s case law-loaded proceedings heard Hira relate a Canadian case where a criminal received a suspended sentence, plus three years’ probation, for the “vicious” aggravated assault of a woman.
But Pompeo’s shooting of Gillespie “wasn’t directed at abusing him,” Hira noted.
Wood accepted that idea.
“I don’t think Const. Pompeo wanted to shoot this man (Gillespie), but his training mandated it.”
And Pompeo’s adherence to stringent RCMP training sits at the centre of what’s bugging Wood.
“It’s a question of (an officer’s) breach of (public) trust, and the degree to which it was abused,” the patient judge said.
“I’m not sure there’s not a significant role that he’s at the fault of use-of-force training; that’s what troubles me most about this case.”
During the past 8 1/2 months of testimony, court heard how Pompeo’s fear-based stress may have clouded his judgement into believing Gillespie was reaching into a pocket for a weapon when he and friend Dale Brewer were stopped by Pompeo and his partner in a Chemainus driveway.
“Threat cues lead you to believe there’s a weapon,” Wood said of a 59-second window when Pompeo reverted to his training, and lowered his moral culpability.
Wood also noted what he called Pompeo’s failure to engage in situational reassessment as the night’s events unfolded.
Hira cited 41 letters testifying to Pompeo’s commitment as a concerned cop and community booster.
Still, Wood remained concerned about Pompeo’s actions.
“This was not one of those cases,” he said of Pompeo’s commendable career.
Ruzicka noted, “In this case, mitigating circumstances don’t offset aggravating circumstances.”
Hira explained hard jail time could be seen as cruel and unusual punishment, given convicts can deliver rough, possibly lethal, justice to police officers behind bars.
Wood understood the risks of prison life Pompeo could face, even under protective-custody orders.
“The reality is, if there’s a security issue, it means 23 hours a day in your jail cell, and an hour in the yard.”
Besides, explained Hira, Pompeo is a family man who had an unblemished police-service record, until shooting Gillespie.
Hira also pointed to a bevy of police-training courses Pompeo — still working for the RCMP in Nanaimo — has taken since his conviction to understand and prevent what went wrong on the night that left a bullet inside Gillespie.
The convicted constable told Judge Wood an RCMP disciplinary code of conduct investigation had started, but is now in abeyance.
Pompeo’s apology in court Friday was cold comfort to Gillespie.
“It’s a little too little, too late,” he told the News Leader Pictorial. “I believe Mr. Pompeo was sincere, but he’s never said anything (apology) until today.”