Judge John Faulkner has handed down a one-year conditional sentence to a Pelly Crossing man who pleaded guilty to assaulting his father-in-law Danny Van Bibber.

It will be followed by 18 months' probation, the territorial court judge has ruled.

William Peter Smith's sentence was handed down last week in Pelly Crossing.

"At the end of the day, this is one of those very hard, very close calls, the kind that make judges old before their time,” Faulkner said.

"One must, at the end of that day, balance or reconcile the perhaps irreconcilable. Having given as anxious a consideration as I can to all the relevant factors and also considering the additional factor that one of the things which would meet the ends of justice in this case is to have some restitution in favour of the victim.

"Considering that that is unlikely to happen if I throw Mr. Smith in jail, I have concluded that a fit sentence is that he be sentenced to a period of imprisonment of one year to be followed by a period of probation of 18 months.”

In reviewing the facts around the case, Faulkner noted Smith was convicted of the assault causing bodily harm and with a breach of an undertaking.

Smith originally pleaded guilty to aggravated assault, but withdrew that plea in favour of a not guilty plea.

Smith then again changed his plea to guilty on the lesser charge of assault causing bodily harm as well as to the breach later on.

"The circumstances of the assault charge are serious, to say the least,” reads the decision.

Smith was at a New Year's Eve party at his father-in-law's home. He was "grossly intoxicated and asked to leave the party.”

Outside the home, the two came across one another.

"The offender was acting in a menacing fashion,” reads the decision.

When Smith's father-in-law indicated he didn't want any trouble and turned to go inside the house, Smith called after him. The older man turned around and Smith punched him in the head.

"This was followed by a volley of punches which resulted in Mr. Van Bibber falling and hitting his head on a stove,” reads the decision.

"Once Mr. Van Bibber was on the ground, the assault carried on and included what were described as ‘soccer kicks' to the victim's head and body.”

By the time the assault ended, Smith's father-in-law had a concussion, a number of cuts, and swelling and bruising to his face.

He also had blood in his urine and numerous fractures to his face, including the eye, cheek and sinus bones.

He was medevaced to Vancouver, where he had a number of surgeries over an extended period of time.

"More yet are still scheduled, particularly one to remove a steel plate that was used by surgeons to stabilize the facial fractures,” reads the decision.

The breach charge came out of October 2011.

"Mr. Smith, who was grossly intoxicated, passed out in a restaurant in Whitehorse,” it reads.

"The police were summoned and Mr. Smith, who was acting somewhat aggressively, was restrained and arrested. At the time, his undertaking included a condition requiring him to abstain from the possession or consumption of alcohol.

"Obviously, with respect to the sentence to be imposed, it is the assault causing bodily harm charge which is the major matter to be considered.”

Prior to this case, Smith had one conviction of impaired driving in 2008.

"With respect to Mr. Smith's personal circumstances, it can be concluded from his prior record, limited though it is, and certainly from the circumstances of the index offences, that he struggles with alcohol addiction,” the judge wrote.

"Nevertheless, he is in a stable relationship and has two young children. He is regularly and responsibly employed, most recently, for the last several years, looking after the water treatment plant for his community of Pelly Crossing.”

Smith also had a favourable pre-sentence report. However, as Faulkner noted, the severity of the assault is such that a custodial sentence would be inevitable.

"The only issue before the court is whether that sentence should be served in actual custody or conditionally in the community, subject to a conditional sentence order.”

In opting for the conditional sentence, Faulkner cited case law, pointing to Smith's background as an aboriginal man and in having a difficult upbringing. Faulkner also noted Smith doesn't have a history of violence.

"If Mr. Smith had any prior history of violence whatsoever, on the facts of this case that custodial tipping point would clearly have been reached,” the judge stated.

"Given his lack of prior criminal history, the issue remains a live one and requires consideration by the court.”

Smith's probation officer concluded the offender would be suitable for a community sentence, and that any risk of reoffending is attached to his alcohol problem.

"Indeed, his breach of his release conditions have to heighten that concern to some extent,” reads the decision.

"However, it has also to be noted that Mr. Smith has been compliant since then, and he has subsequently taken some steps to arrange further treatment and counselling both for himself and his wife.”

Under the conditions of his sentence, Smith must:

• keep the peace;

• appear in court when required;

• notify his conditional sentence supervisor of changes in name, address or job;

• report to the conditional sentence supervisor forthwith and as required after;

• remain in the territory unless he has written permission of the conditional sentence supervisor;

• reside as directed;

• remain at home except for work or to get "the necessities of life” or otherwise with written permission of the sentence supervisor;

• abstain from possession or consumption of alcohol or controlled drugs or substances except with a prescription of a medical practitioner; and

• that breath or urine samples be provided on demand.

Smith must also not be anywhere where alcohol is sold except a restaurant which might be licensed.

He is to have no contact with his father-in-law nor another person involved except with prior written permission.

The offender must also take alcohol or substance abuse counselling and programming as directed, and take other assessment, counselling and programming as directed.

Smith must also provide the sentence supervisor with consents to release information about his participation in any program, counselling or other activities, and make restitution of $1,000 within six months.

Following the conditional sentence, Smith will serve his 18 months' probation with the same conditions except for the house arrest and the requirement for breath and urine samples.

He must also provide DNA samples.