Milton court judge decides no public purpose would be served if she sent Shaun Pennell to jail - grants an Absolute Discharge.

Crime 100By Pepper Parr

January 30th, 2019

BURLINGTON, ONTARIO

 

Court rooms are both majestic and painful places to be.

The majesty of the law – where all are equal and justice is dispensed is critical to the society we live in.

We trust the government to appoint men and women as Judges who will determine what happens to a person when they break a law.

The hard cases are heard in criminal courts where a person can be put in a prison for the rest of their lives for breaking the law.

Pennell in handcuffs

Shaun Pennell being led away by police officer at the scene of the tragic mistake

Yesterday forenoon Shaun Pennell stood before Justice Lesley Baldwin, a female Judge who has been part of the criminal bar for decades and pled guilty to two criminal code offences.

The first part of the hour and a half hearing was to arraign Shaun Pennell on the offences: Criminal negligence and Failing to provide the necessities of life for a person under the age of 15,

Shaun stood and in a quiet voice said guilty.

Assistant Crown Prosecutor Nick Chiera set out the facts that had been agreed upon with defence counsel.

On May 23rd, 2018 Shaun and his wife Jennifer (Jenn) put their son into the van they owned. It was not clear to anyone just who strapped the boy, Wyatt, then 3 years old, into the car seat that had him facing forward right behind his Father who was going to drive the boy to a daycare and then drive on to his office.

police looking into van

Police officer looking into the van at the scene of the crime.

In the facts read into the Court record prosecutor Chiera said that Shaun forgot to take the boy to the daycare and instead drove directly to his office, parked the vehicle and went into the office building where he worked leaving the boy in the car.

The boy had been given his iPad to play with and a set of headphones by his parents before the van left the house.

Shaun Pennell

Shaun Pennell standing between the van in which his son died and the ambulance that took the body away.

Jenn arrived at the office, both worked for the same organization, at around noon with lunch for Shaun. No mention was made of where Wyatt was – Jenn believed he was at the daycare.

When she tried to dial into the day care’s monitoring service later in the day she could not get access – she called the daycare and was told Wyatt was not there.

When the parent realized that the boy was still in the van panic set in and the couple raced to the Ford Escort van and found the child still in the car seat. They called 911.

van with car seat

The van and the car seat in which Wyatt Pennell died of hypothermia.

The ambulance arrived in minutes; – they were unable to revive the boy. He had been in the van from about 10 am to about 4:30 pm, without having any food or water on a day when the temperature was in the 26 degree range.

The Court was not given much in the way of details as to who first realized that the boy was still in the van. Police reported that they were called to the site of the tragedy at around 4:30 pm. There appeared to be a difference in the time line the Court was given and the time line in news reports on when the police arrived. Any differences were not material.

An autopsy determined the three-year-old died of hypothermia.

Pennell was charged with failing to provide the necessities of life and negligence causing death

Assistant Crown Attorney Nick Chiera explained that his role was to set out an agreed upon statement of facts and to help the Court determine what a sentence should consist of

Brian Greenspan

Celebrated defence lawyer Brian Greenspan

Defence lawyer Brian Greenspan explained to the court that Shaun Pennell was a good man who made a tragic mistake; one that he will carry with him for the rest of his life.

Greenspan, one of the most celebrated criminal lawyers in the country, offered the court evidence he felt the Judge could use in determining an appropriate sentence. He pointed to research on forgotten baby syndrome

Justice Lesley Baldwin said that in sentencing there were two main issues: deterrence and denunciation.

The Judge said that there was little doubt that Shaun Pennell would repeat the crime. In the matter of denunciation she said that society would not be served were she to send him to jail and leave him with a criminal record.

Defence lawyer Greenspan asked the court to give his client a conditional discharge sentence of about six months’ probation and require that Pennell continue with his therapy.

Pennell, clad in a grey suit, wept throughout the proceedings and when asked if he wished to address the court during the sentencing said that he did not wish to speak.

Jennifer spoke with the Crown prosecutor on a number of occasions during the proceedings. She sat directly behind Nick Chiera while her husband sat well to her left closer to the lawyer representing him.

There were a few family members in the Court room but for the most part Shaun was by himself, supported by his wife and his legal team – alone with his thoughts and the grief he will carry with him for the rest of his life.

The couple have a two year old daughter.

Justice Lesley Baldwin, said: “It is difficult to contemplate something more devastating than losing one’s child. It is even more so when you are the cause of that loss,” she said and added that “Mr. Pennell did not mean to cause his son any harm. Quite to the contrary, he loved his son. He grieves for him along with everyone else who also cared for Wyatt. That’s what makes this a difficult case.”

Assistant prosecutor Chiera said children are vulnerable members of society saying those charged with their care must be vigilant.

He called for a suspended sentence and probation for Pennell.

Defense Attorney Brian Greenspan said Pennell’s actions have already devastated him.

In a statement to the court, Jennifer said Shaun cried constantly for months following Wyatt’s death.

She also said he lost weight and experiences sleep issues with frequent flashbacks.

“Shaun struggles to get through a day.” He continues to go to work haunted.  “He struggles to make it through a day knowing what he has done. He knows why our son is no longer here and it is torture,” said Jennifer.

Jennifer told the Court that her husband “is a loving father who made a terrible mistake and that has forever changed us.”

Greenspan said no good would be served for Pennell to leave the court with a criminal record and called for him to be discharged. He also argued that if probation was imposed it should be no longer than six months.

Justice Lesley Baldwin said this was one of the saddest cases she had dealt with and decided to grant Shaun Pennell an Absolute Discharge.

She saw “no reason for Mr. Pennell to leave this building with a criminal record given these tragic circumstances.”  She also found that probation was not warranted.

Shaun Pennell left the Court room a broken man who will need years to recover from a tragic mistake. He is undergoing personal counselling and working with his wife to maintain the relationship that has experienced a strain that cannot even be imagined.  Judge Baldwin urged Jennifer to try counselling.

Shaun and his wife did not sand beside each other; they did not hold hands.

What the two of them have is a community that is there to support him as Shaun works to handle the grief that is upon him every day.

What the public has now is a legal precedent that will no doubt be used in a future case of this nature.

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