A business caretaker who fired a shotgun with rubber ammunition at an intruder has been sentenced, but will spend the remainder of his sentence under house arrest with a curfew.
The incident happened at a south Nanaimo business the morning of Jan. 1, 2024. Jeffrey Andrew Benvin, 49, was charged with discharging a firearm and aggravated assault, and pleaded guilty to both before justice Douglas Thompson in B.C. Supreme Court in Nanaimo on Tuesday, Aug. 26. According to an agreed statement of facts, Benvin had been serving as caretaker at the waste disposal business and lived on site.
Jordan Hauschildt, Crown counsel, sought a five-year sentence, while Richard Neary, defence counsel, asked for time served, but in his decision on Wednesday, Aug. 27, Thompson handed Benvin two-year sentences for each count to be served concurrently, that with time served, will amount to 162 more days.
As part of the conditional sentence order, to be served in the community, Benvin must follow a curfew from 7 p.m.-5 a.m., with exceptions for work and medical emergencies. Other conditions include 65 hours of community service to be performed in the next 150 days and a firearms ban.
A man trespassed onto the site and was searching through dumpsters, according to the statement. When noticing the man on video surveillance, Benvin exited his apartment armed with a shotgun equipped with a tactical flashlight, laser pointer and rubber bullets. Based on closed-circuit TV footage, which was shown in court, in a 20-minute interaction, Benvin escorted the man to the edge of the property, and had him lay down, kicking his leg and stepping on his head as he went to open the gate.
As the man approached the gate, he was shot in his right side. Benvin is shown with the shotgun behind his back as a vehicle drives by, before pointing it at the man again after the vehicle passed.
The man ran across the road and collapsed and was found by a passerby, who contacted police. The injured man, who was taken to Nanaimo Regional General Hospital and admitted to using illicit substances the previous night, suffered life-threatening injuries, according to the statement, including a wounds to the right side of his chest, diaphragm, right thigh, right forearm and a liver laceration. He was transported to Victoria General Hospital for further treatment.
The defence called Benvin to the stand, who testified that the site had seen frequent thefts of metal and tools and that he had been previously attacked. On the day of the offences, he had been startled by the man, who had jumped out of a dumpster. He escorted the man off the property and as the man exited, Benvin told the man he was lucky his two dogs didn't get to him.
When the man responded by saying he would've killed the dogs, Benvin said he "lost his cool" and fired the shotgun.
A search warrant was executed on Benvin's apartment and yielded evidence including multiple rifles, shotguns, compressed air guns and various ammunition.
In an impact statement presented in court, the victim stated he suffered from post-traumatic stress disorder and his right arm doesn't function properly. He also has been unable to work.
Arguing for his client, Neary pointed out that the bullets were labelled as non-lethal and his client had the mistaken belief that they "were not capable of causing catastrophic injury.”
The defence counsel also pointed Benvin had been a model citizen in prison, who has been polite, respectful and helpful to new arrivals, with letters of support reiterating this, according to Thompson. He also penned a letter of apology to the victim.
"I am … satisfied that Mr. Benvin and has learned that his actions were criminally excessive and that the proper response to this sort of intrusion is to call the police, I am quite sure that you will not repeat this mistake," Thompson said during sentencing.
Hauschildt did not wish to comment, but during sentencing he and Neary stated they could not find any case law that matched the circumstances of Benvin’s case in terms of precedent.
“It was certainly challenging, but I think that we got through it, and then the judge came to the right result,” Neary told the News Bulletin after sentencing.
