Thursday April 24, 2014

Bullied neighbour fights back

Judge sympathizes despite vicious beating with baseball bat

One neighbour is an electrician who volunteered at the SPCA and did work at no cost for tenants of a neigbouring run-down apartment building.

The other, his tormentor, didn’t work and spent plenty of time in jail.

The dispute pitted “a law-abiding citizen against a neighbour who knows no boundaries,” said B.C. Supreme Court Justice Hope Hyslop.

On an August night three years ago, the bullying neighbour — wielding a baseball bat — accosted Russell Johnston outside his own home on Beach Avenue, smashing his new fence, threatening him and calling him a “rat” — a jailhouse term.

After Paulo Digiacomo struck him, Johnston grabbed the bat and fought back.

As Digiacomo turned to go back to his house, Johnston hit him several times with the bat.

“It was there that Mr. Johnston should have stopped,” said Hyslop. “He didn’t.”

The athletic Johnston, who excelled in hockey and baseball as a youth, gave Digiacomo a vicious beating that landed the 46-year-old man in Royal Inland Hospital with bleeding, open wounds and two fractured arms.

Johnston, now 30 years old, pleaded guilty to aggravated assault.

The Crown asked for a jail sentence of six to nine months, arguing that Digiacomo stopped the fight when he turned to go back to his own home after his bat was seized.

But Hyslop ruled Friday that Johnston — who had taken pains in past to steer clear of disputes with the volatile Digiacomo  — was fearful and acted out of self-defence before taking the beating too far.

The B.C. Supreme Court justice gave Johnston a suspended sentence, $2,500 fine and 100 hours of community work service. He was represented by defence lawyer Sheldon Tate.

In her ruling, Hyslop said the dispute started over Digiacomo’s shop that Johnston believed encroached on his Beach Avenue property and Johnston’s fence, which Digiacomo thought was on his land.

Digiacomo was upset after the city served him with a stop-work order — blaming his neighbour even though Johnston didn’t report it. It was then Digiacomo started calling him a “rat” and “goof” — serious jailhouse taunts.

When Johnston began to put up a fence to stop Digiacomo’s friends from walking across his property, his neighbour said it was on his land and called RCMP. Hyslop said police failed to stop Digiacomo, who was uttering threats.

Instead, RCMP told Johnston to clear it up at City Hall.

Digiacomo spent time in jail on crimes including armed robbery, trafficking and assault.

Armed with a property survey, Johnston then began to construct his fence.

Hyslop said Johnston even stayed away from his own home for several weeks that summer to let Digiacomo calm down and to avoid conflict.

“In my view, Mr. Johnston did everything he could to stop the dispute with his neighbour.”

But events came to a boil on Aug. 28, 2010. Johnston invited friends over to help roof his house. Earlier in the day, Digiacomo threatened one of them who parked in front of his house. He also hit him with a bat as he rushed past him, Hyslop said.

Earlier in the day, Digiacomo knocked out boards of Johnston’s new fence and threw rocks at him.

But a cousin of Digiacomo smoothed over the dispute later that afternoon with Johnston’s brother.

Johnston thought the rift was over.

He came home in a taxi after drinking with friends following the day of roofing and found his gate open and dog out of the yard. Digiacomo started back at Johnston, first smashing the fence and then coming at his neighbour.

That’s when Johnston grabbed the bat and administered the beating.

In 2012, Digiacomo went to the home of one of Johnston’s friends and threatened him over the incident.

Defence lawyer Tate entered more than a dozen letters of character reference for Johnston. An honour roll student in high school, he went to Cariboo College working toward a bachelor of science degree.

But Johnston changed course in school, opting to get an electrician’s ticket.

A former coach said he’d never seen Johnston lose his temper as captain of his rep hockey team.

Declining to jail him, Hyslop said Johnston doesn’t need rehabilitation and is not a threat to society.

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