R. v. Fitzgerald

R. v. Fitzgerald

Offender committed sexual intercourse with a 14-year-old; prosecution did not prove a position of trust beyond a reasonable doubt, but given the statutory aggravation for offences against persons under 18, the mandatory minimum, the need for denunciation and deterrence, and the offender's mitigation (guilty plea and remorse), a proportionate sentence is two years' imprisonment followed by an 18-month probation order and ancillary statutory orders.

Citation
2014 NSPC 1
Parties
Crown: Her Majesty the Queen; Accused: Terry Leonard George Fitzgerald; Complainant: A.B.
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
7 January 2014
Procedural Posture
Criminal Sexual Offence (s.151 Criminal Code) / Sentencing Decision
Outcome
Guilty plea accepted; sentenced to two years' imprisonment followed by probation and statutory orders
Legal Topics
Section 151 Criminal Code, Sentencing Principles, Denunciation and Deterrence, Position of Trust, SOIRA, DNA Collection, Victim Surcharge
Source Language
English
Criminal Law Sentencing Sexual Offences Child Protection Section 151 Criminal Code Sentencing Principles Denunciation and Deterrence Position of Trust +3 more

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Parties

Her Majesty the Queen

Crown

Terry Leonard George Fitzgerald

Accused

A.B.

Complainant

Procedural Posture

Criminal Sexual Offence (s.151 Criminal Code) / Sentencing Decision

Legal Issues

  1. 1 Whether the offender occupied a position of trust or authority relative to the victim
  2. 2 Appropriate quantum of sentence given statutory minimum and aggravating factors for offences involving persons under 18
  3. 3 Applicability of statutory aggravating factors and primary consideration of denunciation/deterrence under s.718.01

Ratio Decidendi

Offender committed sexual intercourse with a 14-year-old; prosecution did not prove a position of trust beyond a reasonable doubt, but given the statutory aggravation for offences against persons under 18, the mandatory minimum, the need for denunciation and deterrence, and the offender's mitigation (guilty plea and remorse), a proportionate sentence is two years' imprisonment followed by an 18-month probation order and ancillary statutory orders.

Court Disposition

Guilty plea accepted; sentenced to two years' imprisonment followed by probation and statutory orders

Orders

  • Two years' imprisonment (custodial federal term)
  • Probation for 18 months with conditions including keep the peace and be of good behaviour; report to Adult Corrections in New Glasgow within 48 hours of release and thereafter as directed; notify and report address changes; attend sex offender counselling and other counselling as directed; notify probation officer...