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A young man who was “encouraging” another person to set fire to a defenceless person as a prank by filming the incident faces no further time in jail.
Joshua McWhirter, who had been in custody since his December arrest, must still serve an 18 month probationary period, Judge Anne Wallace ordered at McWhirter’s sentencing hearing Thursday.
The 18-year-old, the court heard, was struggling to fit in and had been drinking with a group of people in December 2012 when Mathew Sweet-Grant handed him a cell phone and told him to shoot video as Sweet-Grant poured Aqua Velva on a drunk man passed out on the floor of a Kelowna home and then lit him on
fire as a prank.
In dispute was whether or not McWhirter provided the Aqua Velva to Sweet-Grant, the court heard.
The victim, 18-year-old Tyler Weir, did not notice his injuries until hours later. He suffered second and third
degree burns to 90 per cent of his back and additional burns on his buttocks.
“The consequences to Mr. Weir are going to be life-long,” said Crown counsel David Grabavac.
It has affected his mobility and forced him to give up longboarding, mixed martial arts and swimming, Weir told the court in a written victim impact statement.
McWhirter “feels badly” for what happened to Weir, said defence lawyer Blaine Weststrate. ““There was no intention on Joshua’s part to hurt Tyler in any way.”
Still, “he was assisting and encouraging by videotaping the event.”
And while it is “perplexing” for adults to see how such an act could happen, Wallace said, McWhirter had seen similar burning incidents on television and online and viewed them as a prank.
McWhirter, who does not have a previous criminal record, pleaded guilty to being a party to the aggravated assault last month.
Grabavac sought a six to nine month jail sentence, plus probation, and did not oppose enhanced credit.
Defence sought time served and probation, noting McWhirter has been in custody since December and had been locked in his cell for 23 hours a day for a portion of his time in jail. That lockdown was for McWhirter’s protection, the court heard.
McWhirter, Wallace noted, did not have a stable life from the start, and has fetal alcohol spectrum disorder because his mother consumed alcohol and cocaine while she was pregnant.
He also has attention deficit hyperactivity disorder.
“You had, in some respects, the cards stacked against you,” said Wallace, who urged him to find ways to deal with his challenges. “You have to be responsible to the community to not be involved in law breaking.”
Wallace sentenced him to nine months jail, but after enhanced credit for the more than six months he has been in custody, he will not spend any more time behind bars.
“It’s all been served,” said Wallace.
He is now on probation for the next 18 months and may not have contact with Sweet-Grant or Weir, cannot drink or consume drugs or go to licenced premises and must take any assessments, counselling or programs his probation officer deems fit.
He is to participate in a victim-offender reconciliation with Weir, if Weir wishes. If not, he is to write a letter of apology.
McWhirter also faces 20 hours of community work service, which could be served by speaking to high school students about his experience.
The probation could be terminated early if the probation officer is agreeable, Wallace added.
Sweet-Grant, the man who lit Weir on fire, was earlier sentenced to 18 months jail and two years of probation.