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The Court of Appeal upheld convictions for break and enter and arson, holding the trial judge properly assessed police recognition evidence and video identification.
Given the unpredictable and substantial public risk inherent in lighting spilled gasoline at a commercial premises in a residential area, the offender's conduct constituted serious arson; mitigating factors (youth, remorse, first offender, cooperation) did not outweigh public protection and denunciation objectives; therefore a custodial sentence was required and the Crown's proposed sentence was imposed (24 months federal for s.434; concurrent 30 days on s.430(4) and s.145(4)(a); 36 months probation with specified conditions; discretionary DNA order; mandatory weapons prohibition; restitution…
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Although the Crown proved the occurrence of prowling, arson and resulting injuries, the identity of the perpetrator was not proved beyond a reasonable doubt because identification evidence was unreliable given nighttime/stressful conditions, a flawed and suggestive pre-trial photo process (photos shown by complainant's daughter rather than a proper line-up), lack of corroborative identification from the security video, and the complainant's equivocation; therefore acquittals were required on all counts.
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Sentence for deliberate arson and related violence: the court imposed 2 years less a day after credit, plus three years’ probation, restitution, and a DNA order.
The court found Steven Marlo Gallagher guilty of break and enter and arson, accepting recognition evidence and circumstantial proof that he was the pharmacy arsonist.
The offender was sentenced to a total of 15 months' imprisonment (14 months for counselling to commit arson and 1 month consecutive for the threat) because the conduct was planned, prolonged and deliberate, the offender has prior convictions for violence and refuses to accept responsibility, and the objectives of denunciation, deterrence and protection of the public outweighed mitigation; ancillary orders include a 20-year weapons prohibition, a DNA order and 24 months' probation with specific conditions upon release; restitution was declined to avoid prejudicing civil remedies.
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Sentence appeal not at issue; Wei George Li received two years in federal penitentiary for causing damage by fire, with no restitution order and a DNA order made.
Even if the trial judge erred in referring to the impugned aggravating factor, the error had no impact on the global sentence; the ten-year two-month sentence was fit given the appellant's record and the catastrophic effects of the offences; consecutive sentences were lawful because the offences involve different elements; the victim fine surcharge was set aside.
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Sentencing reasons in an arson case where the court accepted a joint submission, imposed 36 months concurrent custody less credit, and ordered DNA and weapons prohibitions.
The Court held that although the trial judge reasonably found the appellant started the fire on the totality of the evidence, s.433(a) requires proof that the property was inhabited or occupied by someone other than the accused (or otherwise be read in context to protect others), and because the Crown failed to prove Unit 101 was inhabited or occupied by another person the s.433(a) conviction (count one) must be quashed and an acquittal entered; the conviction for wilfully injuring the dog (count four) was quashed because the trial judge did not address whether the Crown proved the appellant…
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