



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


R. 
          v. Fitzgerald,







2008 
          BCCA 11



Date: 20080108

Docket: CA035483

Between:

Regina

Respondent

And

Shaun 
    Douglas Fitzgerald

Appellant




Before:


The 
          Honourable Madam Justice Newbury




The 
          Honourable Madam Justice Saunders




The 
          Honourable Mr. Justice Frankel



Oral Reasons for Judgment




J. 
          Whysall


Counsel for the Appellant




J. 
          Duncan


Counsel for the Respondent

(Crown)




Place 
          and Date of Hearing:


Vancouver, British Columbia




7 January 2008




Place 
          and Date of Judgment:


Vancouver, British Columbia




8 January 2008



[1]

NEWBURY, J.A.
: Mr. Fitzgerald appeals an effective sentence of eight 
    years and two months imprisonment he received after pleading guilty to three 
    counts of causing damage by fire to property contrary to s. 434 of the
Code
, 
    and one count of breaking and entering contrary to s. 348(1).

[2]

The offences took place in late 2004 and early 2005.  The property 
    damaged consisted of an apartment complex inhabited by low income tenants 
    called Homeview Apartments (in fact, these apartments were set fire to on 
    three different nights by the appellant and others), a pub called Wild Bills 
    and another pub called Finnigans Pub.  A great deal of damage, dislocation 
    and mental anguish was caused in each instance.  A family business was destroyed, 
    people lost their jobs and over one million dollars in property damage occurred.

[3]

At the time of sentencing the appellant had spent 19 months in custody, 
    not at a pre-trial center, but in a facility where some programs were available 
    to be taken.  He nevertheless received double credit for the 19 months so 
    that his net sentence was five additional years.  The Crown had sought eight 
    to ten years and the defence a maximum of two years less one day and probation.

[4]

The sentencing judge reviewed in his lengthy and thoughtful reasons 
    for judgment the circumstances of each fire.  The first occurred 27 November 
    2004 at the apartment complex in the early hours of the morning.  Fortunately, 
    the residents were able to escape safely when somebody yelled fire.  Other 
    buildings nearby were endangered, but due to great efforts by the fire department, 
    did not catch fire.  A second fire was set three days later at the building, 
    by then uninhabited, and the third on 28 December 2004.  As mentioned, all 
    three were the subject of one count.  The fire at Wild Bills Pub took place 
    on 1 December 2004 at 5:27 a.m. resulting in the complete destruction of the 
    premises and the business owned by a Mr. Esposito and his family.  He and 
    his son spoke in victim impact statements about the devastating effect the 
    fire had on them.  The third fire, at Finnigans Pub (which is part of a building 
    complex that includes a hotel and banquet facilities), occurred at about 8:00 
    a.m. on 6 January 2005.  It endangered nearby apartments and townhouses.  
    Again, fortunately, hotel guests and staff were evacuated safely.  Of course, 
    it could easily have been a different story.

[5]

Mr. Fitzgerald was charged with four other persons - a Mr. Porsch (who, 
    on behalf of an unnamed person, had contracted Mr. Fitzgerald to do the arsons); 
    Mr. Fitzgeralds girlfriend, Ms. MacDonald; and two younger people, one Hall, 
    one Munro.  The latter three received sentences ranging between 30 and 42 
    months, reflecting their lesser participation and the fact they had no or 
    only minor criminal records.  Mr. Fitzgerald on the other hand had a long 
    record with many failures to comply with court orders.  His past offences 
    included many thefts and possession of stolen property, but surprisingly, 
    the longest sentence of imprisonment he has received was six months in 1999.

[6]

He was age 26 when sentenced on this occasion, and is addicted to crack 
    cocaine.  He told the authorities that he was in debt to a drug dealer who 
    paid him to set the fires and also had threatened his life.  The sentencing 
    judge noted this at para. 80 of his reasons and then continued:

[81]      
    Defence counsel suggests that Mr. Fitzgerald was in a very vulnerable state 
    and was easy to single out for someone who was looking for an individual to 
    commit these type(s) of crimes.  It is easy to understand, according to defence 
    counsel, how Mr. Fitzgerald would be lured into this type of activity with 
    the offer of some money, which clearly he saw as being a way to get the drugs 
    he needed.

[82]      
    I will turn now to the accuseds criminal record, and I am not going to detail 
    each entry.  That is done on pages 4, 5 and 6 of the Presentence Report.  
    I will summarize it by saying it starts July 18
th
, 1994 in Youth 
    Court and once the accused hits the adult age of 18 the record continues virtually 
    non-stop through the late 1990s and into the 2000s and right up to these present 
    day offences.  As has been pointed out by defence counsel, the vast majority 
    of these offences that are recorded can best be described as property offences.  
    There are breaches of failing to comply with court orders included and given 
    the accuseds substance abuse that is not surprising.

[83]      
    The most disturbing and aggravating feature of this record is the entry November 
    24
th
, 2003 in Surrey, B.C.  On that date the accused was sentenced 
    on a charge of possession of stolen property over $5,000 and failing to stop 
    at an accident scene to two years less a day, a conditional sentence order.  
    While serving what is often described as a jail sentence in the community 
    the accused Fitzgerald was totally out of control, and it is almost beyond 
    comprehension how it is that an individual who is on this type of disposition, 
    namely one that is supposed to keep him on a very tight leash, could be doing 
    what he was doing.  No explanation has been provided and I am reluctant to 
    even hazard a guess as to how you could be on this type of sentence, Mr. Fitzgerald, 
    as I say supposedly behind bars in the community on tight conditions, including 
    what I would expect to be curfew conditions, and you are doing this.

[84]      
    I will deal briefly with the issue of remorse.  Mr. Fitzgerald, you have entered 
    guilty pleas to these offences and clearly that is a mitigating factor.  I 
    always find it difficult to assess the level of remorse that is being expressed 
    by an accused, because, as I have mentioned, it is very easy when judgment 
    day rolls around to say that you are sorry for all your past misdeeds, and 
    I am going to simply leave my comments at that.

[85]      
    Defence counsel has provided a number of certificates that you have taken 
    part in certain programs, and as I mentioned earlier, that would be the expectation, 
    Mr. Fitzgerald, and I am taking that into account that it appears you have 
    done well while in a custodial setting.  Mr. Gervin on your behalf suggested 
    the appropriate range of sentence, taking into account the time you have spent 
    in custody, would be an additional one to two years less a day, and the Court 
    imposing some form of probation to follow to monitor your behaviour in the 
    community.

[7]

The Court reviewed the principles of sentencing and concluded that
primacy
had 
    to be given to the separation of the appellant from society and to a lesser 
    degree, denunciation and deterrence.  With respect to the defence argument 
    that the sentence should not be
very
much more than those given to 
    MacDonald, Hall and Monroe, the sentencing judge said this:

[94]      
    Mr. Gervin on your behalf, Mr. Fitzgerald, has emphasized the principle of 
    proportionality, namely the principle of similar sentences to be imposed for 
    similar offenders for similar offences, and suggests that I have to be very 
    aware of what was handed down in the case of the co-accused and that is, of 
    course, in reference to Ms. MacDonald and Mr. Hall.  I am mindful of that 
    and I conclude, Mr. Fitzgerald, that you fall into an entirely different category.  
    Given your record and your involvement in these offences it is not realistic 
    for me to put you in the same category as the other accused.  With you the 
    concern is, as I mentioned earlier, clearly about protecting the community.

Accordingly, 
    he sentenced Mr. Fitzgerald to the additional five years on the four counts.

[8]

On appeal, Mr. Whysall argued that the Court failed to give adequate 
    consideration to the objective of rehabilitation, that the sentence should 
    have reflected that the appellant had taken various programs available to 
    him before sentencing, and that eight years was simply more than what is necessary 
    to rehabilitate the appellant (if possible) to beat his drug addiction.

[9]

Counsel referred us to various cases, including
R. v. Quigley
, 
    [1998] B.C.J. No. 561 (B.C.C.A.),
R. v. Petropoulos
, [1995] B.C.J. 
    No. 1449 (B.C.C.A.),
R. v. Allard
, [1999] B.C.J. No. 1912 (B.C.C.A.),
R. v. Saba
, [2000] B.C.J. No. 2207 (B.C.C.A.) and
R. v. 
    Lambert
, [2007] B.C.J. No. 2340 (B.C.C.A.), for the proposition that 
    the appropriate range is considerably lower than eight years.  He sought to 
    distinguish
R. v. Eng
, 2000 BCCA 31, cited by Crown, on the 
    basis that Mr. Eng was psychologically disturbed and unwilling to seek treatment 
    for his condition.  Here, in contrast, it is said Mr. Fitzgerald is a good 
    prospect for rehabilitation.

[10]

Most of the cases relied on by the appellant, however, are distinguishable 
    on the basis of his long record, his role in organizing the arsons and recruiting 
    others to assist, and of course, the fact that we are here pleading with three 
    counts, and not just one.  Further, I must question whether it is a mitigating 
    factor that Mr. Fitzgerald acted because he was in debt to a drug dealer and 
    needed money, as opposed to setting fires for revenge or to get insurance 
    proceeds.  Certainly no authority was cited for the proposition, made by the 
    appellant in his factum, that his culpability is less because he is addicted 
    to an illegal drug.

[11]

It is also argued that the appellants sentence was disproportionately 
    long in comparison to what was received by the co-accuseds.  These offenders, 
    however, were acting at the appellants request and it was he who hired them.  
    Again, their circumstances are not as aggravated as Mr. Fitzgeralds - in 
    particular, his very long record and the fact he was serving a conditional 
    sentence when the subject offences took place.  Mr. Porsch, a person higher 
    up on the contractual chain, received a very long sentence for the arsons 
    and other offences.

[12]

Mr. Fitzgerald is now the father of three children by Ms. MacDonald, 
    and the authorities have taken the children because of the parents drug use.  
    Obviously, there is likely a future of more crime and more punishment ahead 
    for the appellant unless he makes a dramatic turnaround.  This would take 
    a considerable amount of time and effort.

[13]

I acknowledge that the sentence is on the high side in comparison to 
    some of the previous authorities, but at the end of the day the question is 
    whether the sentence was a fit one.  I am unable to say that it was not, or 
    that the sentencing judge erred in failing to give effect to the sentencing 
    principles that are engaged in this case.  In particular, I believe he correctly 
    emphasized the protection of the public from this offender, and denunciation 
    and deterrence.

[14]

In the result, I would extend the time for the appellants filing of 
    his notice, grant leave to appeal, but dismiss the appeal.

[15]

SAUNDERS, J.A.
: I agree.

[16]

FRANKEL, J.A.
: I agree.

[17]

NEWBURY, J.A.
: Thank you counsel, the appeal is dismissed.

The Honourable Madam Justice Newbury


