Man spared jail for break-in during wildfire

A West Kelowna man found guilty of unlawfully being inside a home that was under evacuation order during the 2014 Smith Creek wildfire will not spend time behind bars.

On July 18, 2014, Niso Kamhakoataew, 23, entered a home on Cobblestone Road.

No one was home at the time, because the family had been evacuated during the fire.

Kamhakoataew was intoxicated when he entered the home, said Justice Peter Rogers.

“He roamed through several rooms (and) he touched several personal items belonging to the family,” he said. “By the fingerprints he left behind, it is clear that Mr. Kamhakoataew touched a jewelry box in a bedroom and several bottles or cans of alcohol that were in a downstairs bar area of the house.”

There was no evidence Kamhakoataew stole anything from the home.

In December 2016, Rogers found Kamhakoataew guilty of unlawfully being in a dwelling with the intent to commit a crime.

Kamhakoataew has no prior criminal record.

Kamhakoataew said he has no memory of entering the home or what he did while he was in it.

In a victim impact statement read in court, the family expressed concern that Kamhakoataew was watching their family or would come to their house again.

“(That) is easy to refute,” said Rogers. “Clearly, Mr. Kamhakoataew has no interest in repeating his uninvited attendance of their home.”

Crown sought a three- to sixmonth jail sentence followed by one year of probation, while defence argued for a conditional discharge.

Rogers granted Kamhakoataew a conditional discharge upon successful completion of 18 months’ probation.

“I am convinced this was a onetime failure of judgment by Mr. Kamhakoataew,” said Rogers, adding he does not believe Kamhakoataew is a risk to society.

“This is, in my view, one of those quite rare situations where it would not be just to incarcerate a person. Incarceration would leave Mr. Kamhakoataew with a permanent criminal record; it would cloud his life going forward.”