Fine, firearms prohibition ordered

GANDER - In making the final decision on what was an appropriate sentence for Roger William Whiteway on a charge of unsafe storage of a firearm, provincial court Judge Timothy Chaoker noted that no sentence he could hand down could ever account for the turmoil for those impacted by such a tragedy or reverse what happened.

Mr. Whiteway, age 52, was charged on March 21, 2008, the result of an RCMP investigation into the homicide of his wife, 46-year-old Dianne Whiteway. She was killed on March 19, 2008 at their family home in Lewisporte. Her 22-year-old stepson (Mr. Whiteway's son) Johnathan Roger Whiteway was charged on March 20, 2008 with first degree murder. His preliminary inquiry was set to begin on Monday in Provincial Court in Gander.

FACTS

Mr. Whiteway had pled guilty to the charge on Jan. 6, 2009.

In presenting the facts in the case, Crown prosecutor Douglas Howell noted that in the investigation into Ms. Whiteway's death, the weapon believed to have been used to kill her was registered to her husband. A total of 12 rifles were found at the residence, with 10 secured with trigger locks, another with the firing pin removed.

Nearby ammunition suitable for the firearms was found in unsecured storage.

In an interview with the RCMP on April 17, 2008, Mr. Whiteway noted he could not account for all the keys for the trigger locks. He also noted that he was aware that his son Johnathan might know where the keys were located. It was further acknowledged that Mr. Whiteway was aware that his son had psychiatric issues.

At one point in time prior to the homicide, Mr. Whiteway had removed the firearms from his home, but he brought them back.

Mr. Whiteway's lawyer Joseph Twyne agreed with the facts, noting that the twelfth gun was what would be alleged to have been the murder weapon.

VICTIM IMPACT

As part of the court process on this charge the family of Ms. Whiteway (nee Welsh) submitted three victim impact statements.

The first statement was read by Ms. Whiteway's sister, Maxcena Penney on behalf of the Welsh family.

She noted that the family is still mourning the loss of their loved one, the sixth daughter.

The darkest day the family has ever experienced was March 19, 2008. They live with the "horrible images of how she died."

They spoke of how much she had to live for, her inner strength and her ability to reach out to others.

When she married Mr. Whiteway, Ms. Penney read that her sister's intent was to lend a helping hand with his son.

The close-knit family know that one of their own "is missing forever and it is gut-wrenching and painful."

"At times it seems the darkness will never end," Ms. Penney read.

It was also noted that the family doesn't hate Roger Whiteway, they hate "that you never protected our sister."

"Our family chain will never be the same again," she read.

The family feels that God has the judicial process in place for something, and the hope is that it can be used in the hope of preventing any other tragedies like this from happening in the future.

The next two statements came from Ms. Whiteway's two children (Mr. Whiteway was their stepfather) with one who is now a teenager and another who is close to that age. Their statements were read by their uncle, Byron Welsh.

The older of the children wrote that they believed their mother would be alive "if not for this crime."

When his father told him about what happened he didn't want to believe it. Now his life has changed forever. The mother that took him to church, who was his personal taxi, who wanted only the best for her children is gone.

He wrote of the anger and pain of losing his mother, about looking at her picture each night before going to bed. He wrote how he dreams of her arms around him only to wake up and relive the nightmare over again that she is gone.

"Her death left an empty spot that can never be replaced," he wrote.

Ms. Whiteway's younger son also noted how everything in his life has changed.

"All I wanted to do was run away," he wrote. "I never felt that way before."

He wrote that the one who loved him the most was gone and that he needed her so much now "to hug me and say nice things to me." He misses her face, her smell and the softness of her hands.

He wrote how sometimes he felt like it was his fault that this happened to his mother and that he felt like he wanted to die to be with her. He doesn't like to talk about it or answer questions about what happened anymore.

"I can't see my Mom," he wrote. "It makes no sense."

SENTENCING

Mr. Howell spoke on what would be an appropriate sentence for Mr. Whiteway. He noted Mr. Whiteway was there to be sentenced for the offence of unsafe storage of a firearm, not in the death of Ms. Whiteway.

"That's what we need to focus on," he said.

The Criminal Code sets out different options in sentencing for this type of charge ranging from absolute discharge to a fine of $2,000 or six months (maximum) incarceration.

Mr. Howell noted that the primary consideration in the final sentence on this charge should be denunciation and deterrence to acknowledge the harm done to the victims.

The Crown prosecutor noted that Mr. Whiteway accepted responsibility for his actions and has shown remorse, recognizing "he made a big mistake." He had a positive pre-sentence report and has no criminal record. Therefore the Crown noted what was felt to be appropriate in this matter, that being a fine of $1,200-$1,500 or three-four months incarceration (house arrest in this case as it was felt Mr. Whiteway did not pose any harm to the community). The Crown also asked for a 10 year firearms prohibition and to have any firearms in his possession forfeited.

In making the sentencing recommendations Mr. Howell noted that the Welsh family had suffered a significant loss with the death of Ms. Whiteway.

"There's no way this court would be able to help that family in this loss," he said. "It's a tragedy for the whole family, including Roger Whiteway who is obviously torn (with the loss of his wife and situation regarding his son)."

Mr. Howell noted that there are no other cases that he could find that have been through the courts in Canada with circumstances similar to those presented in this case.

He added that the case involving Mr. Whiteway was before the courts now because of the actions of "a young man who had access to firearms". He obviously can't say whether or not Mr. Whiteway's son having access to a firearm or not would have prevented Ms. Whiteway's death, but he could say that the availability of firearms played some part in the final outcome.

Mr. Twyne noted that the pre-sentence report for Mr. Whiteway was one of the most positive he had ever seen and noted for the court that this was a summary conviction offence, not a more serious indictable offense.

He noted that the consequences in this case are devastating to everyone involved, but he added that if you were to walk into most homes in Newfoundland you would find firearms that are not properly secured.

Mr. Tywne spoke of how his client had taken steps to secure the firearms and that under regular circumstances that may have been enough. While he didn't want to speculate on what exactly happened the day Ms. Whiteway was killed, he did speculate that Johnathan Whiteway had unlocked the gun used in the shooting on his own. He said the facts involving Mr. Whiteway's son in this case are unique, not making it a standard unsafe storage of firearms charge.

He noted the same positive aspects to Mr. Whiteway's character and response in taking responsibility and showing remorse, but argued that the recommended fine was a bit on the high end of things. He also argued against incarceration of his client as Mr. Whiteway visits his son bi-weekly and it would be "beneficial to continue to be a support to Johnathan Whiteway."

"Whatever judgement you impose will pale in comparison to what he, the family and son continues to go through," said Mr. Twyne.

Mr. Whiteway was provided with an opportunity to address the Court. He noted how he lost everything the day Ms. Whiteway was killed. He spoke of going home to an empty house every night.

"Dianne was my wife too and the Welsh's were part of my family," he said. "I lost everything in my life - I hope the Welsh's don't condemn me."

He also added, "I'm sorry for what has happened. That's all I can say."

Judge Chaoker had asked if the gun that was viewed as the murder weapon had been properly secured. Mr. Howell said that the trigger lock and key believed to be associated with that weapon was found in Johnathan Whiteway's bedroom. The firearm had been located at the bottom of the basement stairs.

At that point last Wednesday (March 18) the Judge reserved his decision to have time to further review the information before him.

On March 20 he delivered the decision of a fine of $2,000, victim fine surcharge of $300, firearms prohibition for 10 years and forfeiture of firearms and ammunition seized to the Crown.

In making his decision Judge Chaoker also noted that Mr. Whiteway was not being charged for Ms. Whiteway's death.

"The focus is on general deterrence," he said. "I do not believe a prison sentence would be appropriate."

Judge Chaoker noted that one can never be too vigilant in the proper storage of firearms and ammunition. He said failure to do so can change the course of a persons destiny forever. He also extended his deepest sympathy to the family of Ms. Whiteway and to Mr. Whiteway.